Opinion
78 KA 01–01982
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Shondell J. PAUL, Defendant–Appellant.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, two counts of murder in the second degree ( Penal Law § 125.25 [3 ] ). On a prior appeal, we modified the judgment with respect to the sentence and otherwise affirmed ( People v. Paul, 298 A.D.2d 854, 747 N.Y.S.2d 821 [4th Dept. 2002] ). We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel failed to raise an issue that may have merit—specifically, whether the Antommarchi waiver proffered by defendant's trial counsel was valid ( People v. Paul [Shondell], 148 A.D.3d 1723, 49 N.Y.S.3d 325 [4th Dept. 2017] ), and we vacated our prior order. We now consider the appeal de novo.
We reject defendant's contention that his Antommarchi waiver, i.e., his waiver of the right to be present at sidebar conferences during jury selection (see People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95 [1992], rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 [1992] ), was invalid (see People v. Paul [Tajuan], 171 A.D.3d 1555, 1556, 99 N.Y.S.3d 178 [Apr. 26, 2019] [4th Dept. 2019] ). Defense counsel "may waive [the Antommarchi ] right," which is what occurred here ( People v. Lewis, 140 A.D.3d 1593, 1594, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). Contrary to defendant's contention, "a court need not engage in any ‘pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel ... may nevertheless not know what he [or she] is doing’ " ( id. , quoting People v. Francis, 38 N.Y.2d 150, 154, 379 N.Y.S.2d 21, 341 N.E.2d 540 [1975] ). It was unnecessary for the waiver to occur in defendant's presence because "a lawyer may be trusted to explain rights to his or her client, and to report to the court the result of that discussion" ( People v. Flinn, 22 N.Y.3d 599, 602, 984 N.Y.S.2d 283, 7 N.E.3d 496 [2014], rearg. denied 23 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147 [2014] ). "To the extent defendant argues that his off-the-record conversations with counsel did not sufficiently apprise him of his rights, he relies on matters dehors the record and beyond review by this Court on direct appeal. Such claims are more appropriately considered on a CPL 440.10 motion" ( People v. Jackson, 29 N.Y.3d 18, 24, 52 N.Y.S.3d 63, 74 N.E.3d 302 [2017] ; see People v. Shegog, 32 A.D.3d 1289, 1290, 822 N.Y.S.2d 222 [4th Dept. 2006], lv denied 7 N.Y.3d 929, 827 N.Y.S.2d 697, 860 N.E.2d 999 [2006] ).
Defendant's additional contention that he was deprived of his right to be present at trial conflates the statutory Antommarchi rights with the constitutional rights protected by Parker warnings (see People v. Vargas, 88 N.Y.2d 363, 375–376, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996] ; People v. Sprowal, 84 N.Y.2d 113, 116–117, 615 N.Y.S.2d 328, 638 N.E.2d 973 [1994] ; see generally People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ), and is without merit because he was not deprived of his right to be present in the courtroom.
We reject defendant's contention that reversal is required based on mode of proceedings errors with respect to County Court's handling of certain jury notes. Two of the notes at issue, concerning a juror's request to meet privately with the judge, were ministerial in nature (see People v. Brito, 135 A.D.3d 627, 627–628, 24 N.Y.S.3d 59 [1st Dept. 2016], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ). "[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response" ( People v. Nealon, 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015] ; see People v. Williams, 142 A.D.3d 1360, 1362, 38 N.Y.S.3d 342 [4th Dept. 2016], lv denied 28 N.Y.3d 1128, 51 N.Y.S.3d 24, 73 N.E.3d 364 [2016] ). We thus conclude that "there was no O'Rama error requiring this Court to reverse the judgment" based on the two notes ( People v. Hall, 156 A.D.3d 1475, 1476, 68 N.Y.S.3d 241 [4th Dept. 2017] ). Moreover, we note that even a ministerial response by the court was obviated by the fact that the second note at issue nullified the request made in the first note (see People v. Albanese, 45 A.D.3d 691, 692, 850 N.Y.S.2d 112 [2d Dept. 2007], lv denied 10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258 [2008] ). Because the remainder of the jury notes in question were read into the record in the presence of counsel and the jury, the court "complied with its core responsibility to give counsel meaningful notice of the jury's notes ... [and, t]hus, no mode of proceedings error occurred" ( Nealon, 26 N.Y.3d at 160, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ). As a result, defendant was required to object in order to preserve his contention that the court did not meaningfully respond to the relevant jury notes (see id. ; Williams, 142 A.D.3d at 1362, 38 N.Y.S.3d 342 ). Defendant failed to do so, and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Contrary to defendant's contention, the admission of hearsay testimony implicating him in the crimes does not require reversal because defendant opened the door to the challenged testimony (see People v. Reid, 19 N.Y.3d 382, 387–388, 948 N.Y.S.2d 223, 971 N.E.2d 353 [2012] ). Inasmuch as defendant's cross-examination of a witness may have created a misimpression, the People were entitled to correct that misimpression on redirect examination (see People v. Taylor, 134 A.D.3d 1165, 1169, 20 N.Y.S.3d 708 [3d Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ). Furthermore, we reject defendant's contention that defense counsel was ineffective for opening the door to that testimony. Defendant failed to demonstrate the absence of strategic or other legitimate explanations for that alleged deficiency (see generally People v. Howie, 149 A.D.3d 1497, 1499–1500, 53 N.Y.S.3d 748 [4th Dept. 2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ). There also is no merit to defendant's remaining allegations of ineffective assistance of counsel (see generally People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ).
Upon viewing the evidence in light of the elements of the crimes 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] ). The quality of the witnesses and the existence of cooperation agreements "merely raise credibility issues for the jury to resolve" ( People v. Barnes, 158 A.D.3d 1072, 1072, 70 N.Y.S.3d 679 [4th Dept. 2018], lv. denied 31 N.Y.3d 1011, 78 N.Y.S.3d 281, 102 N.E.3d 1062 [2018] ). Moreover, we are satisfied that the accomplice testimony was sufficiently corroborated (see People v. Smith, 150 A.D.3d 1664, 1665, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ; People v. Highsmith, 124 A.D.3d 1363, 1364, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ).
There is also no merit to defendant's contention that the indictment should have been dismissed due to an inadequate grand jury notification. The People were under no obligation to serve a grand jury notice about charges that were not included in the felony complaint (see People v. Clark, 128 A.D.3d 1494, 1496, 8 N.Y.S.3d 820 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ). Contrary to defendant's additional contention, he was not prejudiced by his codefendant's introduction of allegedly confusing alibi evidence because codefendant's counsel clarified any possible confusion concerning that evidence on redirect examination and in summation (see Paul, 171 A.D.3d at 1557, 99 N.Y.S.3d 178 ; cf. People v. Jarvis, 113 A.D.3d 1058, 1060–1061, 978 N.Y.S.2d 522 [4th Dept. 2014], affd 25 N.Y.3d 968, 8 N.Y.S.3d 650, 31 N.E.3d 112 [2015] ). Defendant also suffered no prejudice from the court's alibi charge because the charge, as a whole, was proper; indeed, it included numerous warnings that the People had the burden of disproving the codefendant's alibi beyond a reasonable doubt (see People v. Castrechino, 24 A.D.3d 1267, 1267–1268, 808 N.Y.S.2d 858 [4th Dept. 2005], lv denied 6 N.Y.3d 810, 812 N.Y.S.2d 450, 845 N.E.2d 1281 [2006] ).
Given defendant's resentencing, we do not consider his challenge relating to his sentence, and we dismiss the appeal from the judgment to that extent (see People v. Linder, 170 A.D.3d 1555, 1560, 95 N.Y.S.3d 681 [4th Dept 2019] ; People v. Haywood, 203 A.D.2d 966, 966, 612 N.Y.S.2d 1016 [4th Dept. 1994], lv denied 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760 [1994] ).
Finally, we have considered defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.