Opinion
2017–08697 Ind. No. 1637/14
10-26-2022
The PEOPLE, etc., respondent, v. David LOUIME, appellant.
Patricia Pazner, New York, NY (David P. Greenberg of counsel), for appellant, and appellant pro se. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, Merri Turk Lasky, and Danielle M. O'Boyle of counsel), for respondent.
Patricia Pazner, New York, NY (David P. Greenberg of counsel), for appellant, and appellant pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Sharon Y. Brodt, Merri Turk Lasky, and Danielle M. O'Boyle of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered July 18, 2017, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of murder in the second degree because the prosecution failed to prove the element of homicidal intent beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's homicidal intent beyond a reasonable doubt. The evidence at trial showed that the defendant accompanied a man known as Q to a bar, and that, at some point, Q accosted the victim. During a subsequent confrontation between Q and the victim, Q punched the victim in the head, which apparently rendered the victim unconscious. A melee immediately ensued, during the course of which the defendant threw punches at a man grappling with Q and struck another bar patron in the face. The defendant then targeted the seemingly unconscious victim by punching, kicking, and stomping him in the head several times. The jury could rationally infer the defendant's homicidal intent from this conduct (see People v. Martinez–Jiminez, 178 A.D.3d 538, 539, 115 N.Y.S.3d 275 ). In addition, the jury could rationally infer from the evidence that the defendant and Q shared "a community of purpose" sufficient to impose accomplice liability on the defendant for Q's act of punching the victim in the head ( People v. Pietrocarlo, 37 N.Y.3d 1142, 1143, 159 N.Y.S.3d 389, 180 N.E.3d 553 [internal quotation marks omitted]; see People v. Hooks, 148 A.D.3d 930, 931, 49 N.Y.S.3d 499 ). The defendant's contention, in effect, that the People were required to prove that Q shared in the defendant's homicidal intent in order to support the defendant's own accomplice liability is without merit, as the defendant may be charged with whatever higher degree of crime is "compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance" ( Penal Law § 20.15 ; see generally People v. Castro, 55 N.Y.2d 972, 973, 449 N.Y.S.2d 184, 434 N.E.2d 253 ; Maiorino v. Scully, 746 F. Supp. 331, 337 [S.D.N.Y.] ).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Contrary to the defendant's contention, his request to be seated in the gallery during the testimony of those witnesses from whom the People would attempt to elicit an in-court identification (see United States v. Archibald, 734 F.2d 938 [2d Cir.] ), was not denied under circumstances suggesting that the Supreme Court erroneously "perceived that it had no discretion" to grant the application ( People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351 ; see People v. Garcia, 196 A.D.3d 700, 700–701, 150 N.Y.S.3d 329 ). The court otherwise did not improvidently exercise its discretion by denying the application since the defendant did not sufficiently place into doubt the reliability of the witnesses’ identification testimony (see People v. Stuckey, 220 A.D.2d 223, 631 N.Y.S.2d 362 ). We further conclude that there was no error in permitting another witness to identify the defendant from a photograph depicting him as he appeared closer in time to the offense where there was evidence that the defendant's appearance at trial changed substantially from the time of the offense, and, under the circumstances, the in-court identification procedure was not likely to result in an unreliable identification (see People v. Norstrand, 154 A.D.3d 1322, 1323, 61 N.Y.S.3d 777 ; cf. People v. Powell, 67 N.Y.2d 661, 662, 499 N.Y.S.2d 669, 490 N.E.2d 536 ).
The defendant's contentions that he was deprived of a fair trial by the purported "outbursts" and the "out-of-control" nature of one of the prosecution's witnesses at trial are, in part, unpreserved for appellate review (see CPL 470.05[2] ), because the defendant either failed to object to the witness's responses on the grounds now advanced on appeal (see People v. Townsend, 100 A.D.3d 1029, 1030, 954 N.Y.S.2d 221 ), or failed to request additional instructions in response to sustained objections (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ; People v. Nelson, 125 A.D.3d 58, 65, 998 N.Y.S.2d 216, affd 27 N.Y.3d 361, 33 N.Y.S.3d 814, 53 N.E.3d 691 ). In any event, while several of the challenged responses were argumentative or nonresponsive, they were either not so prejudicial as to have required curative action by the Supreme Court (see People v. Edwards, 203 A.D.3d 493, 160 N.Y.S.3d 871 ), or otherwise resulted in sustained objections, and the jury is presumed to have followed the court's instructions to disregard those responses (see People v. Stone, 29 N.Y.3d 166, 171, 55 N.Y.S.3d 730, 78 N.E.3d 175 ).
The defendant additionally contends that he was deprived of a fair trial due to the cumulative impact of certain improper comments that the prosecutor made on summation. The defendant's contention is, in part, unpreserved for appellate review (see CPL 470.05[2] ), because he failed to object to some of the comments he now challenges on appeal (see People v. Edwards, 208 A.D.3d 510, 172 N.Y.S.3d 466 ; People v. Nelson, 125 A.D.3d 58, 65, 998 N.Y.S.2d 216 ). In any event, the contention is without merit. The challenged remarks were either a fair response to defense counsel's comments during summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ), or not so egregious or pervasive as to have deprived the defendant of a fair trial (see People v. Stallone, 204 A.D.3d 841, 842, 166 N.Y.S.3d 272 ; People v. Kiarie, 198 A.D.3d 814, 155 N.Y.S.3d 212 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention, raised in his pro se supplemental brief, that the photo array procedure was unduly suggestive is without merit. At the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ), the People established, in the first instance, that the pretrial identification procedures were not improper, and the defendant failed to establish that they were unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Carmona, 185 A.D.3d 600, 602, 126 N.Y.S.3d 705 ). Contrary to the defendant's further contention raised in his pro se supplemental brief, the Supreme Court properly precluded defense counsel from asking certain questions at the Wade hearing on the grounds, among others, that they had been asked and answered, were irrelevant, or called for speculation (see People v. Darby, 196 A.D.3d 643, 644, 148 N.Y.S.3d 380 ).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.