Opinion
1035 KA 16–02153
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Brandon LOGAN, Defendant–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT–APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of forgery in the second degree ( Penal Law § 170.10[1] ), defendant contends that County Court erred in allowing evidence of a prior uncharged crime to be introduced. We reject that contention inasmuch as no such evidence was introduced at trial. Rather, the prosecutor made a remark during her opening statement that was immediately objected to by defense counsel, and the court sustained the objection and issued a curative instruction. In addition, prior to that remark, the court had instructed the jury that opening statements did not constitute evidence, and the jury is presumed to have followed the court's instruction (see People v. Rivers, 18 N.Y.3d 222, 226, 936 N.Y.S.2d 650, 960 N.E.2d 419 [2011] ; People v. Martinez, 59 A.D.3d 361, 362, 874 N.Y.S.2d 80 [1st Dept. 2009], lv denied 12 N.Y.3d 917, 884 N.Y.S.2d 698, 912 N.E.2d 1079 [2009] ). Moreover, defendant's speculation that the jury would infer from the prosecutor's remark that a prior uncharged crime occurred is insufficient to establish a Molineux violation (see People v. Miles, 49 A.D.3d 446, 447, 853 N.Y.S.2d 548 [1st Dept. 2008], lv denied 10 N.Y.3d 867, 860 N.Y.S.2d 493, 890 N.E.2d 256 [2008] ).
We reject defendant's contention that the court erred in refusing to suppress identification testimony based on allegedly suggestive photo array identification procedures conducted by the police. The People met their initial burden of establishing the reasonableness of the police conduct at issue, and defendant failed to meet his ultimate burden of proving that the photo array procedures were unduly suggestive (see People v. Alston, 101 A.D.3d 1672, 1672–1673, 956 N.Y.S.2d 757 [4th Dept. 2012] ; see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). Two witnesses, who were brothers, viewed the same photo array but on separate occasions (see People v. Hakeem, 210 A.D.2d 16, 17, 619 N.Y.S.2d 33 [1st Dept. 1994], lv denied 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629 [1995], reconsideration denied 87 N.Y.2d 902, 641 N.Y.S.2d 232, 663 N.E.2d 1262 [1995], cert denied 517 U.S. 1201, 116 S.Ct. 1701, 134 L.Ed.2d 800 [1996] ), and there was no evidence that the two witnesses communicated with each other between those procedures (see People v. Seymour, 77 A.D.3d 976, 978, 910 N.Y.S.2d 487 [2d Dept. 2010] ; People v. Cummings, 109 A.D.2d 748, 748–749, 485 N.Y.S.2d 847 [2d Dept. 1985] ).
Defendant also contends that the court erred in allowing testimony regarding the photo array procedures and abused its discretion in failing, sua sponte, to order a mistrial based on that testimony. We reject those contentions. The court sustained defense counsel's objections to that testimony, and defense counsel expressly stated that he was not requesting any curative instructions or a mistrial with respect to that testimony (see People v. O'Neal, 38 A.D.3d 1305, 1307, 832 N.Y.S.2d 727 [4th Dept. 2007], lv denied 9 N.Y.3d 848, 840 N.Y.S.2d 775, 872 N.E.2d 888 [2007] ). Moreover, the references to the photo array procedures were both brief and inadvertent (see People v. Proctor, 104 A.D.3d 1290, 1291, 960 N.Y.S.2d 833 [4th Dept. 2013], lv denied 21 N.Y.3d 1008, 971 N.Y.S.2d 260, 993 N.E.2d 1283 [2013] ), and the jury already knew that there was at least one photo array procedure through defense counsel's cross-examination of one of the brothers (see generally People v. Williams, 273 A.D.2d 824, 826, 710 N.Y.S.2d 214 [4th Dept. 2000], lv denied 95 N.Y.2d 893, 715 N.Y.S.2d 386, 738 N.E.2d 790 [2000] ).
Defendant contends that the evidence is legally insufficient to support the conviction because the testimony of an accomplice, i.e., one of the brothers, was not sufficiently corroborated. We reject that contention. Accomplice testimony must be corroborated by evidence "tending to connect the defendant with the commission of [an] offense" ( CPL 60.22[1] ). Here, several witnesses provided testimony that " ‘tend[ed] to connect ... defendant with the commission of the crime in such a way as [could] reasonably satisfy the jury that the accomplice [was] telling the truth’ " ( People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see People v. Lipford, 129 A.D.3d 1528, 1529, 11 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 170, 43 N.E.3d 380 [2015] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant contends that he was denied a fair trial by prosecutorial misconduct when the prosecutor referenced an uncharged crime during her opening statement, when she elicited testimony regarding the photo array procedures, and when she made remarks in summation allegedly vouching for the credibility of the People's witnesses. After defendant's objections to the testimony regarding the photo array procedures were sustained, he did not request a curative instruction or move for a mistrial, and thus that aspect of his contention is not preserved for our review (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ). In addition, defendant did not object to the prosecutor's remarks in summation that he now challenges on appeal, and thus that aspect of his contention is also not preserved (see People v. Maxey, 129 A.D.3d 1664, 1666, 14 N.Y.S.3d 845 [4th Dept. 2015], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016], reconsideration denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ). In any event, those remarks were fair response to defense counsel's summation (see People v. Lewis, 154 A.D.3d 1329, 1331, 63 N.Y.S.3d 156 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). Additionally, we conclude that the remaining instance of alleged error by the prosecutor was not so egregious as to deprive defendant of a fair trial (see People v. Garner, 145 A.D.3d 1573, 1574, 43 N.Y.S.3d 838 [4th Dept. 2016], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ). Reversal for prosecutorial misconduct is mandated " ‘only when the conduct [complained of] has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law’ " ( People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259 [4th Dept. 2009], lv denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 [2009] ), and there was no such prejudice here.
We reject defendant's contention that he was denied a fair trial based on the cumulative effect of the errors alleged herein (see People v. Tuff, 156 A.D.3d 1372, 1378, 68 N.Y.S.3d 273 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018] ). Finally, the sentence is not unduly harsh or severe.