Opinion
692 KA 12-01676.
10-02-2015
The PEOPLE of the State of New York, Respondent, v. Brandon E. HARPER, Defendant–Appellant.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. Brandon E. Harper, Defendant–Appellant Pro Se. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.
Brandon E. Harper, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him, following a jury trial, of one count of murder in the first degree (Penal Law § 125.27 [1] [a][vii] ; [b] ), two counts of murder in the second degree (§ 125.25[1], [3] ) and one count of attempted robbery in the first degree (§§ 110.00, 160.15[2] ), defendant contends, inter alia, that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. With respect to the sufficiency of the evidence, defendant contends that there is insufficient evidence that the killing was in furtherance of an attempted robbery or that an attempted robbery even occurred. Specifically, defendant contends that there was no proof to corroborate defendant's admission that the homicide occurred during an attempted robbery. Inasmuch as defendant did not move to dismiss the first count of the indictment, charging defendant with murder in the first degree, on the ground that there was insufficient evidence of an attempted robbery and did not move to dismiss the attempted robbery count on the ground that defendant's admission was not corroborated, defendant has failed to preserve for our review those contentions with respect to those counts of the indictment (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). He did, however, preserve those contentions for our review with respect to the felony murder count of the indictment, and we exercise our power to review the unpreserved contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed” (CPL 60.50 ; see generally People v. Chico, 90 N.Y.2d 585, 589–590, 665 N.Y.S.2d 5, 687 N.E.2d 1288 ). With respect to the counts of murder in the first degree and felony murder, it is well settled that “CPL 60.50 does not require corroboration of defendant's confession to the underlying predicate felony” to sustain a conviction of murder in the first degree or felony murder, when the charge is based on a murder committed in the course of and in furtherance of one of many enumerated felonies (People v. Davis, 46 N.Y.2d 780, 781, 413 N.Y.S.2d 911, 386 N.E.2d 823 ; see People v. Daley, 47 N.Y.2d 916, 917, 419 N.Y.S.2d 485, 393 N.E.2d 479, rearg. denied 48 N.Y.2d 882, 424 N.Y.S.2d 1028, 400 N.E.2d 373 ; People v. Lytton, 257 N.Y. 310, 313–314, 178 N.E. 290 ; People v. Alexander, 51 A.D.3d 1380, 1382, 857 N.Y.S.2d 418, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 ). “The effect of the confession corroboration statute is to require proof of the corpus delicti” (People v. Murray, 40 N.Y.2d 327, 331, 386 N.Y.S.2d 691, 353 N.E.2d 605, rearg. denied 40 N.Y.2d 1080, 392 N.Y.S.2d 1028, 360 N.E.2d 963, cert. denied 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796 ). With felony murder and murder in the first degree, the corpus delicti is a death resulting from someone's criminality, i.e., a death that did not occur by suicide, disease or accident (see id. at 332–333, 386 N.Y.S.2d 691, 353 N.E.2d 605 ; Lytton, 257 N.Y. at 313–314, 178 N.E. 290 ). The fact that the victim was found dead as the result of a gunshot wound is sufficient corroboration (see People v. Hamilton, 121 A.D.2d 395, 396, 503 N.Y.S.2d 106 ).
The same analysis does not apply to the underlying felony itself. Where, as here, there is no corroboration of a defendant's confession with respect to the underlying felony, that count of the indictment charging the defendant with the underlying felony must be dismissed (see People v. Velez, 122 A.D.2d 178, 178–179, 504 N.Y.S.2d 715, lv. denied 70 N.Y.2d 658, 518 N.Y.S.2d 1052, 512 N.E.2d 578 ; see also Davis, 46 N.Y.2d at 781, 413 N.Y.S.2d 911, 386 N.E.2d 823 ; Murray, 40 N.Y.2d at 330–331, 386 N.Y.S.2d 691, 353 N.E.2d 605 ). Here, as in Velez, there was no “ ‘additional proof that the offense [of attempted robbery] ha[d] been committed’ ” (id. at 178, 504 N.Y.S.2d 715, quoting CPL 60.50 ). We therefore modify the judgment accordingly.
Contrary to defendant's further contention, the verdict is not against the weight of the evidence on the issues of his identity as the shooter and his intent to kill the victim (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). In our view, “there was ample circumstantial evidence establishing defendant's identity as the shooter” (People v. Moore [Appeal No. 2], 78 A.D.3d 1658, 1659, 912 N.Y.S.2d 825lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 ; see People v. Rivera, 112 A.D.3d 1288, 1289, 977 N.Y.S.2d 822, lv. denied 23 N.Y.3d 1024, 992 N.Y.S.2d 807 ), as well as his intent to kill. “[I]t should be obvious that the more the defendant shoots ... the victim, the more clearly intentional is the homicide” (People v. Payne, 3 N.Y.3d 266, 272, 786 N.Y.S.2d 116, 819 N.E.2d 634, rearg. denied 3 N.Y.3d 767, 788 N.Y.S.2d 670, 821 N.E.2d 975 ). Here, the evidence established that there were multiple shots fired at the victim. We thus conclude that defendant's “criminal intent was readily inferable from his conduct” (People v. Guy, 93 A.D.3d 877, 881, 939 N.Y.S.2d 613, lv. denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 ; see Payne, 3 N.Y.3d at 272, 786 N.Y.S.2d 116, 819 N.E.2d 634 ).
Defendant contends that he was denied effective assistance of counsel based on defense counsel's failure to move to preclude defendant's written confession and failure to raise certain contentions in moving to suppress defendant's statements. We reject that contention. There is no dispute that neither the initial CPL 710.30 notice nor the revised CPL 710.30 notice referenced defendant's written statement. While preclusion may have been warranted (see People v. Phillips, 183 A.D.2d 856, 858, 584 N.Y.S.2d 83, lv. denied 80 N.Y.2d 908, 588 N.Y.S.2d 833, 602 N.E.2d 241 ), defense counsel made the strategic decision to pursue suppression of the statement, rendering the statement admissible at trial (see People v. Lane, 132 A.D.2d 855, 856, 518 N.Y.S.2d 207, lv. denied 70 N.Y.2d 801, 522 N.Y.S.2d 118, 516 N.E.2d 1231 ). We are “not prepared to say that [defense counsel's] decision to proceed with the motion to suppress [instead of a motion to preclude] deprived his client of the effective assistance of counsel” (People v. Borthwick, 51 A.D.3d 1211, 1216, 857 N.Y.S.2d 358, lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 ). In any event, “[d]efendant's assertion of an ineffective assistance of counsel claim based on defense counsel's strategic decision to seek suppression of statements instead of moving to preclude the statements based on the People's failure to provide a CPL 710.30 notice require[s] a CPL 440.10 motion in order to afford defense counsel an opportunity to explain his strategy” (People v. Milsner, 34 Misc.3d 150[A], 2011 N.Y. Slip Op. 52496 [U], *2, 2011 WL 7403065lv. denied 18 N.Y.3d 884, 939 N.Y.S.2d 754, 963 N.E.2d 131 ; see People v. Gross, 21 A.D.3d 1224, 1225, 801 N.Y.S.2d 430 ).
Defendant further contends in his main brief and his pro se supplemental brief that defense counsel was ineffective in failing to pursue suppression of the post–Miranda statements on the grounds that there was a single, continuous chain of events and that the statements were obtained as a result of a pretextual arrest for trespass. Those contentions lack merit. First, the evidence at the Huntley hearing established that there was a “definite, pronounced break in the interrogation” (People v. Chapple, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 ). There was over one hour between the initial Miranda violation and the issuance of Miranda warnings, which were followed by the post–Miranda statements. Different officers were involved, and there was a change in location (see People v. Paulman, 5 N.Y.3d 122, 130–131, 800 N.Y.S.2d 96, 833 N.E.2d 239 ; People v. Heck, 103 A.D.3d 1140, 1142, 958 N.Y.S.2d 830, lv. denied 21 N.Y.3d 1074, 974 N.Y.S.2d 323, 997 N.E.2d 148 ; People v. Parker, 50 A.D.3d 1607, 1607, 856 N.Y.S.2d 779, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 619, 896 N.E.2d 105 ; cf. People v. Bethea, 67 N.Y.2d 364, 366–368, 502 N.Y.S.2d 713, 493 N.E.2d 937 ; Chapple, 38 N.Y.2d at 115, 378 N.Y.S.2d 682, 341 N.E.2d 243 ). Moreover, “the brevity of the initial exchange is significant” (People v. White, 10 N.Y.3d 286, 292, 856 N.Y.S.2d 534, 886 N.E.2d 156, cert. denied 555 U.S. 897, 129 S.Ct. 221, 172 L.Ed.2d 167 ). Second, defendant's arrest for a minor offense “cannot be characterized as a ‘sham’ merely because, after [defendant] was taken into custody, the police were more interested in questioning him about a different and graver crime” (People v. Fulton, 257 A.D.2d 774, 775, 683 N.Y.S.2d 646, lv. denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938 ; see People v. Clarke, 5 A.D.3d 807, 810, 772 N.Y.S.2d 630, lv. denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 ; cf. People v. Burley, 60 A.D.2d 973, 973–974, 401 N.Y.S.2d 631 ). We thus conclude that defendant has failed to establish that defense counsel was ineffective in failing to seek suppression on those grounds, inasmuch as “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success' ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).
Defendant contends that County Court erred in its charge to the jury when it stated on one occasion that the murder had to occur in the course of or in furtherance of the attempted robbery. Defendant failed to object to that misstatement, however, and failed to preserve for our review his contention that the misstatement lessened the People's burden of proof (see Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Roman, 190 A.D.2d 831, 831, 593 N.Y.S.2d 828, affd. 83 N.Y.2d 866, 611 N.Y.S.2d 829, 634 N.E.2d 201 ). In any event, defendant's contention lacks merit. The court repeatedly instructed the jury that the murder had to occur in the course of and in furtherance of the attempted robbery, and we conclude that “the charge as a whole adequately conveyed the required standard” (People v. Samuels, 99 N.Y.2d 20, 26, 750 N.Y.S.2d 828, 780 N.E.2d 513 ).
Defendant waived any challenge to the court's annotation of the verdict sheet inasmuch as he requested the annotation (see People v. Cipollina, 94 A.D.3d 1549, 1550, 943 N.Y.S.2d 710, lv. denied 19 N.Y.3d 971, 950 N.Y.S.2d 354, 973 N.E.2d 764 ). In addition, by failing to object to the prosecutor's summation, defendant failed to preserve for our review his contention that he was denied a fair trial when the prosecutor misstated the law concerning felony murder (see People v. Waterford, 124 A.D.3d 1246, 1247–1248, 999 N.Y.S.2d 630 ; People v. Goodman, 190 A.D.2d 862, 862, 593 N.Y.S.2d 873, lv. denied 81 N.Y.2d 971, 598 N.Y.S.2d 772, 615 N.E.2d 229 ). In any event, that contention lacks merit. “To the extent that a portion of the prosecutor's summation could be viewed as containing a misstatement of law, ... any prejudice was avoided by the court's instructions, which the jury is presumed to have followed” (People v. Padin, 121 A.D.3d 628, 629, 994 N.Y.S.2d 309 ; see Waterford, 124 A.D.3d at 1247–1248, 999 N.Y.S.2d 630 ).
Contrary to defendant's contention, the court properly allowed the girlfriend of a codefendant to testify concerning statements made by defendant and the codefendant immediately after the incident. Those statements qualified as both excited utterances (see People v. Johnson, 1 N.Y.3d 302, 305–306, 772 N.Y.S.2d 238, 804 N.E.2d 402 ; People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ), and adoptive admissions (see People v. Campney, 94 N.Y.2d 307, 311–312, 704 N.Y.S.2d 916, 726 N.E.2d 468 ). Defendant further contends that the admission of the codefendant's statements made to and in front of the codefendant's girlfriend violated defendant's right of confrontation. That contention is not preserved for our review, and such a contention, whether based on Bruton v. United States (391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ) or Crawford v. Washington (541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ), requires preservation (see People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 ; People v. Gilocompo, 125 A.D.3d 1000, 1001 ). In any event, we have reviewed defendant's contention and conclude that it lacks merit. There was no Bruton violation where, as here, defendant and the codefendant were not tried jointly (see People v. Baker, 26 N.Y.2d 169, 172–173, 309 N.Y.S.2d 174, 257 N.E.2d 630 ), and there was no Crawford violation because the statements were “neither elicited in a formal manner nor elicited by an investigator” (People v. Paul, 25 A.D.3d 165, 170, 803 N.Y.S.2d 66, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 ).
Finally, we agree with defendant that the certificate of conviction incorrectly recites that he was convicted of murder in the first degree as a “murder of a police officer.” The certificate of conviction must therefore be amended to reflect that he was convicted under Penal Law § 125.27(1)(a)(vii) (see e.g. People v. Knighton, 109 A.D.3d 1205, 1206, 971 N.Y.S.2d 915 ; People v. Jackson, 41 A.D.3d 1268, 1268–1269, 839 N.Y.S.2d 377, lv. denied 10 N.Y.3d 812, 857 N.Y.S.2d 45, 886 N.E.2d 810, reconsideration denied 11 N.Y.3d 789, 866 N.Y.S.2d 616, 896 N.E.2d 102 ).
It is hereby ORDERED that the judgment so appealed from is modified as a matter of discretion in the interest of justice and on the law by reversing the conviction of attempted robbery in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment.
All concur except SCONIERS, J., who is not participating.