Opinion
628 KA 15–01805
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Roberto QUINONES, Defendant–Appellant.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree ( Penal Law § 125.25[1], [3] ). The conviction arose from defendant's intentional killing of a man in the course of robbing him. We now affirm.
Upon our independent review of the evidence in light of the elements of the crimes as charged to the jury (see People v. Kancharla, 23 N.Y.3d 294, 302–303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see generally People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ), we conclude that an acquittal on any count would have been unreasonable in light of defendant's detailed videotaped confession to police, his graphic audiotaped confession to a friend, the testimony of the getaway driver, the corroborating testimony of neighborhood residents who heard gunshots and thereafter saw two men matching the description of defendant and his accomplice running toward the getaway driver's car, and the consciousness of guilt reflected in defendant's recorded jailhouse calls. The verdict thus is not 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] ; People v. Wheeler, 159 A.D.3d 1138, 1140, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ). Contrary to defendant's contention, Supreme Court properly refused to suppress his confession on Payton grounds. "Police officers were in defendant's home pursuant to a valid search warrant and, ‘since the requirements for a search warrant were satisfied,’ " we conclude that " ‘there was no constitutional infirmity in the failure of the police to also secure an arrest warrant’ " ( People v. Denis, 91 A.D.3d 1301, 1301, 939 N.Y.S.2d 207 [4th Dept. 2012], lv denied 19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209 [2012] ; see People v. Barfield, 21 A.D.3d 1396, 1396, 802 N.Y.S.2d 820 [4th Dept. 2005], lv denied 5 N.Y.3d 881, 808 N.Y.S.2d 584, 842 N.E.2d 482 [2005] ; People v. Lee, 205 A.D.2d 708, 709, 613 N.Y.S.2d 675 [2d Dept. 1994], lv denied 84 N.Y.2d 828, 617 N.Y.S.2d 148, 641 N.E.2d 169 [1994] ). We note that defendant explicitly concedes the validity of the search warrant, and he does not dispute that the police had probable cause to arrest him.
Contrary to defendant's further contention, defense counsel was not ineffective in failing to move to suppress his confession on the ground that he invoked his right to silence during the interrogation. The governing law is unfavorable to a claim that defendant effectively invoked that right under the circumstances presented here (see e.g. People v. Howard, 72 A.D.3d 1199, 1201, 897 N.Y.S.2d 786 [3d Dept. 2010], lv denied 15 N.Y.3d 806, 908 N.Y.S.2d 165, 934 N.E.2d 899 [2010] ; People v. Cole, 59 A.D.3d 302, 302, 873 N.Y.S.2d 603 [1st Dept. 2009], lv denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ; People v. Allen, 147 A.D.2d 968, 968, 537 N.Y.S.2d 415 [4th Dept. 1989], lv denied 73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593 [1989], reconsideration denied 74 N.Y.2d 660, 543 N.Y.S.2d 403, 541 N.E.2d 432 [1989] ), and we thus cannot say that counsel's failure to seek suppression on that ground rendered her performance constitutionally deficient (see People v. Brunner, 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] ; People v. Bradford, 118 A.D.3d 1254, 1255–1256, 987 N.Y.S.2d 727 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). Moreover, because defendant identifies no statement that he made during the interrogation that could plausibly be construed as a request for an attorney (cf. People v. Howard, 167 A.D.3d 1499, 1501, 90 N.Y.S.3d 427 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019] ), we reject his separate contention that defense counsel was ineffective in failing to seek suppression on that ground (see Bradford, 118 A.D.3d at 1255–1256, 987 N.Y.S.2d 727 ).
Contrary to defendant's further contention, the court properly denied his motion for a mistrial based on alleged juror misconduct. The record of the court's Buford inquiry demonstrates that the alleged misconduct consisted only of a "totally innocuous" conversation between jurors during a recess, that such conversation had "nothing to do with the jury's evaluation of the evidence," and that the court's general instructions and inquiries of the relevant jurors "were sufficient to address any possibility of prejudice" ( People v. Bosket, 295 A.D.2d 202, 203, 743 N.Y.S.2d 710 [1st Dept. 2002], lv denied 98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556 [2002], lv denied 99 N.Y.2d 555, 754 N.Y.S.2d 207, 784 N.E.2d 80 [2002] ). We note that CPL 270.35(1) is not implicated here because defendant never sought to discharge the subject jurors.
Defendant next argues that the fairness of his trial was compromised by prosecutorial misconduct on summation. We do not agree. Although the bulk of the challenged comments "would have been better left unsaid," the record as a whole "fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial" ( People v. Pitt, 170 A.D.3d 1282, 1285, 95 N.Y.S.3d 459 [3d Dept. 2019] [internal quotation marks omitted]; see People v. Stanley, 108 A.D.3d 1129, 1131, 970 N.Y.S.2d 136 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013] ). Reversal is therefore unwarranted (see generally People v. Nunes, 168 A.D.3d 1187, 1193, 90 N.Y.S.3d 694 [3d Dept. 2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 234, 124 N.E.3d 723 [2019] ).
The sentence is not unduly harsh or severe. We have considered and rejected defendant's remaining contentions.