Opinion
11-02-2017
The PEOPLE of the State of New York, Respondent, v. Kareem MURRAY, Appellant.
Paul J. Connolly, Delmar, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., DEVINE, AARONS and RUMSEY, JJ.
AARONS, J.Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 22, 2015, upon a verdict convicting defendant of the crimes of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a controlled substance in the second degree.
As defendant and the codefendant, his uncle, were being investigated through eavesdropping warrants and surveillance for drug-related crimes, law enforcement officials learned that defendant was targeting an individual who defendant believed was involved in the rape of his girlfriend. After the victim was shot and killed, defendant and the codefendant were detained in a traffic stop and subsequently arrested. A search of the codefendant's vehicle revealed loaded handguns, ammunition and narcotics. Defendant was charged in a multicount indictment in connection with the shooting of the victim, as well as his possession of the handguns and controlled substances. Following a joint jury trial with the codefendant, defendant was convicted of murder in the second degree, conspiracy in the second degree, two counts of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the second degree. County Court sentenced defendant, as a second felony offender, to an aggregate prison term of 39 years to life in prison, followed by five years of postrelease supervision. Defendant now appeals. We affirm.
The codefendant was convicted of the same charges.
Turning first to defendant's claim that the evidence procured from the eavesdropping warrant should have been suppressed, we reject defendant's contention that probable cause was lacking for the eavesdropping warrant to be issued (see People v. Williams, 138 A.D.3d 1233, 1236–1237, 29 N.Y.S.3d 647 [2016], lvs. denied 28 N.Y.3d 932, 939, 40 N.Y.S.3d 360, 366, 63 N.E.3d 80, 86 [2016] ; People v. Alnutt, 107 A.D.3d 1139, 1141, 968 N.Y.S.2d 634 [2013], lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). Furthermore, contrary to defendant's assertion, the eavesdropping warrant was properly issued inasmuch as the People sufficiently established that normal investigative procedures were unavailable. The application for the eavesdropping warrant was supported by, among other things, an affidavit of an investigator with the State Police Bureau of Criminal Investigation, who averred that other procedures, such as physical surveillance, use of confidential informants, traffic stops, search warrants or interviews with known associates of defendant would not likely succeed in aiding the investigation. Given that the eavesdropping warrant application complied with the requirements of CPL article 700, County Court properly denied defendant's motion seeking suppression of evidence obtained through the eavesdropping warrant (see People v. Anderson, 149 A.D.3d 1407, 1409, 54 N.Y.S.3d 176 [2017], lv. denied 30 N.Y.3d 947, ––– N.Y.S.3d ––––, – ––N.E.3d –––– [Sept. 22, 2017]; People v. Brown, 233 A.D.2d 764, 765–766, 650 N.Y.S.2d 836 [1996], lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 247, 680 N.E.2d 621 [1997] ; People v. Baker, 174 A.D.2d 815, 817, 570 N.Y.S.2d 857 [1991], lv. denied 78 N.Y.2d 920, 573 N.Y.S.2d 472, 577 N.E.2d 1064 [1991] ).
Defendant also challenges County Court's suppression ruling regarding the weapons, ammunition and drugs seized from a vehicle registered to the codefendant. County Court correctly determined that defendant did not have standing to contest the search of the vehicle because defendant did not have a legitimate expectation of privacy over such vehicle (see People v. Anderson, 118 A.D.3d 1137, 1138, 987 N.Y.S.2d 252 [2014], lv. denied 24 N.Y.3d 1000, 997 N.Y.S.2d 119, 21 N.E.3d 571 [2014] ). It is undisputed that defendant was not the registered owner of the vehicle. In addition, there was no evidence demonstrating that defendant had the right to exclude others from the vehicle or had some possessory interest in it (see generally People v. Rodriguez, 69 N.Y.2d 159, 162, 513 N.Y.S.2d 75, 505 N.E.2d 586 [1987] ). Under these circumstances, we find that defendant lacked standing (see People v. Laws, 208 A.D.2d 317, 321–322, 623 N.Y.S.2d 216 [1995] ; People v. Williams, 90 A.D.2d 642, 643, 456 N.Y.S.2d 280 [1982] ; see generally People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ).
Even if defendant had standing, based upon our review of the record, we are satisfied that the warrant obtained to search the codefendant's vehicle was supported by probable cause (see People v. Cherry, 149 A.D.3d 1346, 1347–1348, 52 N.Y.S.3d 567 [2017], lv. denied 29 N.Y.3d 1124, 86 N.Y.S.3d 566, 64 N.E.3d 674 [2017] ; People v. Dawson, 110 A.D.3d 1350, 1351, 973 N.Y.S.2d 850 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ).
We reject defendant's assertion that the admission of a redacted recording of the codefendant's interview with the police violated his right to confront witnesses. During such interview, defendant was not named by the codefendant, nor was he otherwise implicated in any wrongdoing by the codefendant's statements (see People v. Maschio, 117 A.D.3d 1234, 1235, 986 N.Y.S.2d 252 [2014] ; People v. Pagan, 87 A.D.3d 1181, 1184–1185, 929 N.Y.S.2d 332 [2011], lv. denied 18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012] ). Furthermore, County Court instructed the jury that the recorded police interview should be considered as evidence only against the codefendant (see People v. Thompson, 147 A.D.3d 1298, 1300–1301, 47 N.Y.S.3d 532 [2017], lvs. denied 29 N.Y.3d 1030, 1037, 62 N.Y.S.3d 299, 306, 84 N.E.3d 971, 978 [2017] ). As such, we conclude that there was no violation of defendant's right to confront witnesses.
Regarding defendant's motion for a separate trial, we find no abuse of discretion in County Court's denial of such motion. Upon a showing of good cause, a court may order separate trials(see CPL 200.40[1] [d] [iii] ; People v. Middleton, 192 A.D.2d 740, 742, 596 N.Y.S.2d 177 [1993], lv. denied 83 N.Y.2d 913, 614 N.Y.S.2d 395, 637 N.E.2d 286 [1994] ). "[S]everance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" ( People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ). Defendant relies on the statements made in the redacted video interview of the codefendant as a basis for severance but, as discussed, such statements did not implicate defendant. Furthermore, contrary to defendant's claim, the codefendant's counsel did not act as a second prosecutor inasmuch as the testimony elicited during cross-examination of certain witnesses did not reveal any new information that was not already provided on direct examination of such witnesses (see People v. Wilson, 120 A.D.3d 1531, 1533, 993 N.Y.S.2d 200 [2014], affd. 28 N.Y.3d 67, 41 N.Y.S.3d 466, 64 N.E.3d 286 [2016] ; compare People v.
Forbes, 203 A.D.2d 609, 612, 609 N.Y.S.2d 961 [1994] ). Also, the opening and closing statements by the codefendant's counsel did not expressly place any blame on defendant but, instead, emphasized the lack of direct evidence pointing to the codefendant's guilt. Although defendant correctly notes that the codefendant would not be bound by County Court's Sandoval ruling (see People v. McGee, 68 N.Y.2d 328, 333, 508 N.Y.S.2d 927, 501 N.E.2d 576 [1986] ), given that defendant and the codefendant were charged with similar crimes and the People used the same evidence against them, such fact does not compel separate trials (see People v. Hernandez, 260 A.D.2d 399, 400, 688 N.Y.S.2d 185 [1999], lv. denied 93 N.Y.2d 925, 693 N.Y.S.2d 509, 715 N.E.2d 512 [1999] ). Indeed, "[w]here the proof against both defendants is supplied to a great extent by the same evidence, only the most cogent reasons warrant a severance" ( People v. Minor, 129 A.D.3d 1337, 1339, 13 N.Y.S.3d 596 [2015] [internal quotation marks and citation omitted], lv. denied 27 N.Y.3d 1003, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016] ; see People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657 [2005] ; People v. Hope, 186 A.D.2d 872, 874, 589 N.Y.S.2d 363 [1992], lv. denied 80 N.Y.2d 1027, 592 N.Y.S.2d 677, 607 N.E.2d 824 [1992] ). In the absence of such cogent reasons and taking into account the strong public policy in favor of joint trials (see People v. Mahboubian, 72 N.Y.2d at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34), we cannot say that County Court abused its discretion in denying defendant's motion for a separate trial (see People v. Cordato, 85 A.D.3d 1304, 1308–1309, 924 N.Y.S.2d 649 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ; People v. Melendez, 285 A.D.2d 819, 822, 727 N.Y.S.2d 773 [2001], lvs. denied 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312 [2002] ; 97 N.Y.2d 731, 740 N.Y.S.2d 704, 767 N.E.2d 161 [2002] ).
Defendant further argues that County Court's reverse Batson ruling concerning two male jurors was erroneous. During jury selection, the People objected to defendant's peremptory challenge with respect to juror No. 5 on the basis that he was the "eighth straight male that the defense has excused for a peremptory." County Court noted that juror No. 5 was the "eighth male that [defendant has] challenged peremptorily" and requested a gender-neutral reason. Defense counsel responded that his challenge of juror No. 5 was based on his conservative background and "his dealing with Plug Power and that type of corporation, when he hears expert testimony, that he would automatically side for testimony regarding forensic, regarding DNA, regarding a lab in general." The codefendant's counsel added that juror No. 5's "[b]ody language was extremely troubling. He appeared to be shaking his head." With respect to juror No. 17, the codefendant's counsel had "concerns about his experience in Greene County that he spoke about, [f]ederal [g]overnment employee" and explained that "he appears to fit the profile of a conservative-prosecution vote." The People responded that defendant has "agreed to keep one male out of 11" and that it was "disproportionate with the males." In granting the People's Batson objection, County Court stated, "I believe that [defendant is] excluding males and ... [has] shown a pattern."
Defendant and the codefendant were required to agree on their use of peremptory challenges.
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As relevant here, we agree with defendant that he satisfied the second step of the Batson analysis by providing gender-neutral reasons for his peremptory challenges on juror Nos. 5 and 17 (cf.
People v. Payne, 88 N.Y.2d 172, 186, 643 N.Y.S.2d 949, 666 N.E.2d 542 [1996] ; People v. Green, 141 A.D.3d 1036, 1040, 36 N.Y.S.3d 312 [2016], lv. denied 28 N.Y.3d 1072, 47 N.Y.S.3d 231, 69 N.E.3d 1027 [2016] ; People v. Murphy, 79 A.D.3d 1451, 1452, 913 N.Y.S.2d 815 [2010], lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ). Nevertheless, even though it appears that County Court effectively compressed steps two and three of the Batson test, the court's consideration of pretext can be inferred from the record (see People v. Payne, 88 N.Y.2d at 185, 643 N.Y.S.2d 949, 666 N.E.2d 542 ; People v. Cajigas, 82 A.D.3d 544, 545, 918 N.Y.S.2d 463 [2011], affd. 19 N.Y.3d 697, 955 N.Y.S.2d 296, 979 N.E.2d 240 [2012] ). We note that, while both parties and the court bear a responsibility to ensure the development of an adequate record, "[w]hen [t]rial [j]udges are satisfied ... that unlawful discrimination has been employed by either side, there should be no artificial procedural barriers to their taking firm and prompt action" ( People v. Payne, 88 N.Y.2d at 184, 643 N.Y.S.2d 949, 666 N.E.2d 542 ). Accordingly, it is unnecessary to remit the matter for further proceedings (see e.g. People v. Quiles, 74 A.D.3d 1241, 1244, 904 N.Y.S.2d 469 [2010] ; People v. Starks, 234 A.D.2d 861, 862, 651 N.Y.S.2d 949 [1996] ) or order a new trial (see e.g. People v. Grafton, 132 A.D.3d 1065, 1067–1068, 18 N.Y.S.3d 213 [2015], lvs. denied 26 N.Y.3d 1145, 1147, 32 N.Y.S.3d 59, 61, 51 N.E.3d 570, 572 [2016] ).
Regarding defendant's challenge to County Court's Molineux ruling, which permitted the People to admit evidence of a prior shooting incident, such claim is unpreserved for our review in light of defendant's failure to advance a specific argument at the combined Sandoval–Molineux hearing regarding the admissibility or prejudicial effect of the prior shooting incident (see People v. Tyrell, 82 A.D.3d 1352, 1355, 918 N.Y.S.2d 636 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011] ). In any event, we find no error in County Court's Molineux determination (see People v. Portis, 129 A.D.3d 1300, 1302–1303, 12 N.Y.S.3d 328 [2015], lvs. denied 26 N.Y.3d 1088, 1091, 23 N.Y.S.3d 644, 648, 44 N.E.3d 942, 946 [2015] ). Defendant also acknowledges that his counsel failed to request a Molineux limiting instruction, and we conclude that such failure, by itself, does not amount to ineffective assistance of counsel (see People v. Cox, 129 A.D.3d 1210, 1214, 10 N.Y.S.3d 727 [2015], lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ).
Finally, defendant contends that the sentence of 14 years imposed for his conviction of criminal possession of a controlled substance in the second degree, which was ordered to run consecutively to the sentences imposed for the other convictions, was harsh and excessive. We disagree. Given defendant's prior drug-related convictions and his lack of remorse for his actions, we discern no abuse of discretion or extraordinary circumstances warranting the reduction of this sentence in the interest of justice (see People v. Slaughter, 150 A.D.3d 1415, 1418, 55 N.Y.S.3d 473 [2017] ; People v. Jordan, 148 A.D.3d 1461, 1463, 51 N.Y.S.3d 639 [2017] ). To the extent not specifically addressed herein, defendant's remaining arguments, including those raised in his pro se supplemental brief, have been examined and are without merit.
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., DEVINE and RUMSEY, JJ., concur.