Opinion
9187 Ind. 2343/13
05-02-2019
The PEOPLE of the State of New York, Respondent, v. James THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel, Brooklyn), for appellant. Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel, Brooklyn), for appellant.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Sweeny, J.P., Gische, Webber, Kahn, Moulton, JJ.
Defendant validly waived his right under People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 (1992) to be present at bias-related conferences with prospective jurors. Although defendant did not expressly waive his right to be present at those particular times, he confirmed his understanding of the court's advice about his right to be present at all stages of trial, but he chose not to do so (see People v. Flinn, 22 N.Y.3d 599, 984 N.Y.S.2d 283, 7 N.E.3d 496 [2014] ; People v. Williams, 15 N.Y.3d 739, 907 N.Y.S.2d 740, 934 N.E.2d 309 [2010] ).
The court properly rejected defendant's peremptory challenge to a juror, which counsel sought to exercise after the parties had accepted the juror and moved on to challenges for cause and peremptory challenges to another round of panelists (see People v. Brown, 52 A.D.3d 248, 859 N.Y.S.2d 175 [1st Dept. 2008], lv denied 11 N.Y.3d 735, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008] ). Defendant did not provide any legitimate excuse, and the court correctly concluded that granting the challenge at that point would have been prejudicial to the People under the circumstances of jury selection at that stage.
Recordings of prison phone calls were sufficiently authenticated through testimony by a Department of Correction investigator "establishing that the recordings were what they purported to be based on the standard procedures employed by" the correctional facility, which included a policy against making any alterations to phone call recordings and retaining the recordings pursuant to a chain of custody protocol ( People v. Rodriguez, 166 A.D.3d 459, 460, 86 N.Y.S.3d 1 [1st Dept. 2018], lv denied 11 N.Y.3d 735, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2019] ; see generally People v. Ely, 68 N.Y.2d 520, 527–528, 510 N.Y.S.2d 532, 503 N.E.2d 88 [1986] ). This knowledgeable witness gave detailed testimony about the recording process. It was not necessary for him to have acquired any knowledge of the particular phone calls or recordings at issue before he examined the relevant records in preparation for his testimony, because "[g]aps in the chain of custody may be excused when circumstances provide reasonable assurances of the identity and unchanged condition of the evidence" ( People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ).
The court providently exercised its discretion in denying defense counsel's request to redact from the recorded phone calls defendant's repeated use of profanity and an offensive racial term that applied to the racial identity of defendant himself and the other party to the conversation. Redacting these individual words from the recording would have disrupted the flow of conversation and led to speculation by the jury as to these gaps. In any event, any error in this ruling was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant's claim of a mode of proceedings error as to two jury notes arises from a clerical error in the omission of the relevant portion of the transcript from the record. The supplemental record establishes that the court complied with People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 (1991) as to both jury notes.
The record supports the court's determination that, notwithstanding a suppressed identification procedure, the victim had an independent source for his identification of defendant. The victim observed the two perpetrators with no obstructions for about three to five minutes, in a well-lit area (see People v. Williams, 222 A.D.2d 149, 153, 646 N.Y.S.2d 665 [1st Dept. 1996], lv denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ), and "gave a detailed and accurate description of defendant" ( People v. Walker, 132 A.D.3d 568, 569, 17 N.Y.S.3d 871 [1st Dept. 2015], lv denied 27 N.Y.3d 1008, 38 N.Y.S.3d 117, 59 N.E.3d 1229 [2016] ). The victim deliberately established eye contact with the perpetrators during the robbery in an attempt to calm them and persuade them to leave (see Williams, 222 A.D.2d at 153, 646 N.Y.S.2d 665 ). Moreover, the suppressed showup was conducted almost immediately after the robbery, providing no time for the victim's memory to fade (see id. ).
As the People concede, the criminal use of a firearm count should be dismissed in the interest of justice because it was predicated on the same display of a firearm that supported the first-degree robbery conviction. We find that resentencing on the remaining convictions in light of the dismissal would be appropriate in this case.