Opinion
Ind. # 2011-1084C
01-15-2013
THE PEOPLE OF THE STATE OF NEW YORK Plaintiff, v. AGAPE TOWNS Defendant.
APPEARANCES: For the People: KYLE STEINEBACH, ESQ . Assistant District Attorney SANDRA DOORLEY, ESQ. Monroe County District Attorney 47 S. Fitzhugh Street Rochester, New York 14614 For the Defendant SAM L. VALERIANI, ESQ. Executive office Building - Suite 400 36 West Main Street Rochester, New York 14614
11/14638 APPEARANCES:
For the People:
KYLE STEINEBACH, ESQ .
Assistant District Attorney
SANDRA DOORLEY, ESQ.
Monroe County District Attorney
47 S. Fitzhugh Street
Rochester, New York 14614
For the Defendant
SAM L. VALERIANI, ESQ.
Executive office Building - Suite 400
36 West Main Street
Rochester, New York 14614 DECISION AND ORDER DEMARCO, J.
The defendant was convicted, upon a jury verdict, of six counts of Robbery in the First Degree. He has now moved this Court for an order pursuant to CPL 330.30 (1), setting aside the jury's verdict and dismissing the indictment or granting a new trial. The People oppose the motion. For the following reasons, defendant's motion is denied in its entirety.
Defendant's motion papers set forth numerous grounds upon which he requests CPL 330.30 relief. Before discussing the specific grounds asserted, the Court notes that the applicable standard authorizes a trial court to set aside a guilty verdict on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (CPL 330.30 [1]; see People v Ventura, 66 NY2d 693 [1985]). "The power granted a Trial Judge is, thus, far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact" (People v Carter, 63 NY2d 530, 536 [1984]). Moreover, the trial court may only consider claims of error that are properly preserved for appellate review (see People v Simmons, 74 AD3d 1247, 1248 [2 Dept 2010], lv denied 15 NY3d 855 [2010]). Thus, this Court may set aside the jury's verdict pursuant to CPL 330.30 only if there exists on the record a clear, preserved error requiring reversal as a matter of law. With the operative standard in mind, the court now turns to the various grounds urged by defendant.
Lamar's guilty plea, the sentencing commitment and Lamar's trial testimony
Turning to defendant's numerous complaints spanning 26 pages, the vast majority of them focus on the fact that the Court accepted a guilty plea to the indictment from co-defendant Tashmere Lamar, with a sentencing commitment, and Lamar testified as a prosecution witness at defendant's trial. Accordingly, those arguments will be addressed together.
First, defendant asserts that Lamar's testimony was the result of a "cooperation agreement" between Lamar and the Court, whereby Lamar would receive a sentence from the Court of nine (9) years in state prison, provided Lamarr cooperated and testified against Towns. The so-called "cooperation agreement" further provided, according to defendant, that if the Court decided that Lamar failed to cooperate or in fact gave false testimony at the trial, then Lamar could receive an enhanced sentenced of up to fifteen (15) years in state prison, plus five (5) years post-release supervision. Defendant claims that, as a result of this agreement, Lamar necessarily had to testify falsely against Towns, because the agreement "fostered an expectation in Lamar's mind as to what he (Lamarr) must say when called to testify in order to secure the nine-year sentence that the Court promised" - Lamar had to testify that Towns was the masked perpetrator with him on the video of the robbery, or else he would face up to fifteen (15) years in prison. According to defendant, Lamar had to identify Towns as the masked robber, even though that was not true. Defendant claims that Lamar was "locked in" to giving testimony implicating defendant by virtue of his prior statements to the police and his own desire to receive a more lenient sentence. He also maintains that because Lamar never indicated to the Court that his statement to the police was true and he was never subjected to a polygraph examination to determine the truth or falsity of his statement to the police, that statement should not have been accepted as the benchmark by which the Court would determine Lamar's cooperation and, hence, his sentence. Defendant claims that he was highly prejudiced because identification was the crucial issue in the case and Lamarr's testimony was the "lynchpin in the government's case".
Defendant primarily blames the Court for accepting Lamar's guilty plea and making a sentencing commitment and alleges that by doing so, the Court improperly interjected itself into the fact-finding process reserved for the jury by assuming, without any verification, that Lamarr's statement to the police was truthful. Defendant argues that the Court derogated its duty to remain impartial, "fashioned itself against Mr. Towns" and deprived defendant of his right to confrontation in violation of the Sixth Amendment of the United States Constitution. Although he acknowledges that the Court permitted defense counsel "to conduct an unfettered cross-examination of Lamar on this issue, the agreement at issue by its very nature and due to its inescapable implications ipso facto rendered [defense counsel's] cross-examination thereon otiose or, at best, merely academic." He also complains that his right of confrontation "served as a double-edged sword against him", because, on one hand, defense counsel had to "expose the agreement" between Lamar and the Court or the jury would not have known that Lamar's testimony might be motivated by that agreement, but on the other hand, it also gave the jury reason to believe that the Court - "the ultimate authority in the courtroom" - credited Lamar's testimony and that it, the jury, should do so also.
According to defendant, the net result of the so-called agreement between Lamar and the Court, prevented defendant from uncovering through the cross-examination of Lamar "who the person was with Lamar on the video of the robbery." Defendant's argument catapults from there to assert that the burden of proof was thereby diminished, the presumption of innocence was undercut and he was effectively deprived of his right to a trial by jury.
Next defendant asserts that the outcome may have been different if the Court had refused to allow Lamar to plead guilty and testify against defendant, because corroboration would have been absent and defendant may have been found not guilty. Defendant also argues that the Court, by allowing the guilty plea and making a sentencing commitment, essentially became a "quasi agent of the government", usurped the role of the prosecutor, gave the prosecutor an unfair advantage, and "convey[ed] such an appearance or that otherwise encroaches on or supplants the prerogative of the executive branch", violated public policy, deprived defendant of his due process right to a jury trial and ultimately resulted in defendant's conviction.
The People respond to the above complaints of defendant by asserting that defendant points to no decisional law that requires a reversal where a co-defendant pleads guilty to an indictment with a sentencing promise and agrees to testify against a co-defendant. As the People also note, defendant is mistaken when he states that there existed a "cooperation agreement" between the Court and Lamar, when, in fact, it was nothing more than a sentence commitment after Lamar pleaded guilty. The People note that, as acknowledged by defendant, defense counsel was able to cross-examine Lamar at length, not only about his guilty plea and the possible sentence he would receive, but also about the robbery and anything else. The result, according to the People, is that there is no merit to defendant's claim that his right to confrontation was violated or impaired in any manner.
The Court agrees, for the reasons stated in the People's responding papers, that there is no merit to any of defendant's contentions that the Court should set aside the verdict based upon Lamar's guilty plea, the Court's sentencing commitment to Lamar, and/or Lamar's testimony. Defendant had a full opportunity to cross-examine Lamar regarding his guilty plea and about the robbery. In fact, when defense counsel raised this issue to the Court, the Court essentially gave defense counsel unfettered discretion, as defense counsel acknowledges, in his cross-examination of Lamar. Defendant's claim that the jury must have concluded that it was compelled to accept Lamar's trial testimony as true because of any conduct or comments on the part of the Court, has only a speculative basis in fact and no basis in law. The Court did not usurped the jury's fact-finding role and made clear in its instructions to the jury that it was the sole arbiter of the facts. Moreover, the Court gave the jury instructions on assessing the credibility of all the witnesses. There is no known basis to claim that the jury did not follow the Court instructions.
Moreover, defense counsel points to no case law or statute that prohibited the Court from accepting the guilty plea of, not only Lamar, but also the other codefendant in this case, Racigliano. Oddly, defendant does not make the same arguments regarding Racigliano's guilty plea and trial testimony as he makes about Lamar's, even though Racigliano also pleaded guilty with a sentencing commitment from the Court and also testified against and identified defendant at trial.
There is no merit to defendant's remaining claims that the Court's acceptance of Lamar's guilty plea and the Court's sentencing commitment, made the Court a quasi-government agent or second prosecutor in the courtroom or was otherwise improper or unethical. Courts routinely accept guilty pleas and make sentencing commitments to defendants in criminal cases and defendant's characterizations that it was improper for the Court to do so here has not basis in fact or law (see Bordenkircher v Hayes, 434 US 357, 364 [1977]; see e.g. People v Daniels, 86 AD3d 861 [3 Dept 2011], lv denied 17 NY3d 952 [2011]).
Corroboration of the identification of defendant as a perpetrator
Defendant maintains that there was insufficient corroboration of the testimony of the two codefendants identifying him as a perpetrator of the robbery, and therefore, the Court should have granted defense counsel's motion for a trial order of dismissal at the close of the People's case. He acknowledges that the video of the robbery would otherwise arguably provide that corroboration, but that would be permitted only if the Court credited the testimony of the codefendants. He asserts that the Court should not credit the testimony of either of the codefendants because Racigliano "was under contract with the government, so his testimony was inherently suspect" and Lamar "was under agreement with the Court, so his testimony was both inherently suspect and tainted by virtue of the agreement".
The People respond that two witnesses identified defendant as the perpetrator on the video received in evidence. Other witnesses and exhibits received in evidence provide sufficient corroborative proof to satisfy the requirements of CPL 60.22 (1).
CPL 60.22 (1) provides that "[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of the crime". "New York's accomplice corroboration protection . . . requires only enough nonaccomplice evidence to assure that the accomplices have offered credible evidence" (People v Breland, 83 NY2d 286, 293 [1994]). "The corroborative glue does not require independent proof of the elements of the crime to sustain a conviction; it just has to bind the accomplice evidence to the defendant" (id; see also People v Caban, 5 NY3d 143, 155 [2005]). "The corroboration must consist of 'evidence from an independent source of some material fact tending to show that defendant was implicated in the crime'" (People v Moses, 63 NY2d 299, 306 [1984 ], quoting People v Kress, 284 NY 452, 460 [1940]). It does not need to be "powerful in itself" (People v Reome, 15 NY3d 188, 191 [2010]). In fact, it "'need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth'" (id. at 191-192, quoting People v Dixon, 231 NY 111, 116 [1921]). Put another way, "the role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it. The accomplice testimony, if credited by the jury, may serve the latter purpose" (People v Hudson, 51 NY2d 233, 238 [1980]).
Here, the Court concludes, upon a review of the trial testimony and the evidence received as exhibits at the trial, that the People supplied several strands of corroborative nonaccomplice evidence to satisfy the requirements of CPL 60.22 (1) and connect defendant to the robbery.
Issues regarding the summation of counsel
Defendant also contends that his CPL 330.30 motion should be granted because the Court improperly lowered the People's burden of proof by sustaining the prosecutor's objection to remarks made by defense counsel during his summation. He also asserts that the Court improperly permitted the prosecutor, during his summation, to attack and denigrate defense counsel and the defense strategy. He argues that defense counsel was not permitted to argue to the jury that it was required to believe Lamar beyond a reasonable doubt in order to convict the defendant, and that, by not being allowed to do that, the jury may have convicted the defendant solely on Lamar's testimony on a lesser standard than "beyond a reasonable doubt". He suggests that this was particularly crucial here where identification was the primary issue and defense counsel should have been permitted to explain to the jury why it should not believe Lamar's testimony.
He further asserts that it was improper to permit the prosecutor to attack defense counsel and denigrate the defense strategy on his summation. Defendant suggests that it was the defense strategy to challenge the testimony of the victims that the masked robber was "black" because they only observed the neck and back of the head of the masked robber. He asserts that, while the prosecutor may disagree with the defense strategy, it was improper for him to make comments that attacked defense counsel or mischaracterize the defense strategy regarding this issue. Defendant also states that the prosecutor improperly vouched for the credibility of codefendant Racigliano by comments he made during his summation. Defendant maintains that, had the Court given curative instructions, it may have sufficed to alleviate the prejudice to defendant, but the Court's failure to do so here, "tainted the jury's perception of [defendant] and/or [defense counsel]."
The People respond that the burden of proof was not diminished by the prosecutor's objections to defense counsel's summation that were sustained by the Court. The People note that summations of counsel are not evidence and therefore could not possibly reduce the burden of proof. Moreover, they note that it is the jury's role to evaluate the evidence, including the credibility to be given to any witness's testimony, but that there is no standard of law required to determine credibility. They further respond that the prosecutor's comments during summation regarding the evidence and the defense strategy do not require reversal.
For the reasons stated by the People, the Court concludes that there is no basis to grant defendant's CPL 330.30 motion based on the summations of counsel and the Court's ruling on objections made during those summations. First, comments of counsel are not evidence and the Court so instructed the jury. The Court also instructed the jury that the People had to prove defendant's guilt of each crime charged beyond a reasonable doubt before the jury could find defendant guilty. Further, the Court instructed the jury on evaluating issues of credibility, identification, and corroboration. It is well settled that a jury is presumed to have followed the Court's instructions (see People v Wallace, 59 AD3d 1069 [4 Dept 2009], lv denied 12 NY3d 861 [2009]). Moreover, the prosecutor's comments during summation were not an attack on defense counsel nor did they seek to denigrate the defense strategy. Further, the prosecutor did not vouch for the credibility of any witnesses. Rather, his comments represented fair comment on the evidence and were responsive to the defense claims (see People v Goris, 37 AD3d 204, 205 [1 2007]; see also People v Halm, 81 NY2d 819, 821 [1993]).
Defendant's pro se oral 330.30 motion
Prior to the submission of a written motion to set aside the verdict, defendant asked for the opportunity to be heard regarding several issues that he claims resulted in the denial of a fair trial. First, he argued that he should not have been in custody during the pendency of the criminal action because it deprived him of his ability to assist his attorney in the preparation of his defense and deprived him of his Sixth Amendment right of confrontation. Second, he asserted that the late disclosure of certain physical evidence - the neck gator and gloves-violated his rights and deprived him of a fair trial. The third issue he brought to the Court's attention was that he did not have and that he wanted all the transcripts of every court appearance, especially of the Huntley hearing and the first bail application.
Addressing the last issue first, defense counsel represented that he would obtain and provide those transcripts to defendant. As he pointed out, the defense "prevailed" at the Huntley inasmuch as the Court granted defendant's motion to suppress statements he made after he invoked his right to counsel. There has been no indication that the transcripts have not been provided by defense counsel.
This Court concludes that defendant was not deprived of his right of confrontation or his ability to assist his attorney in the preparation of a defense. Moreover, there is no basis for defendant's contention that there was late disclosure of evidence which deprived him of a fair trial.
In sum, the Court denies defendant's motion pursuant to CPL 330.30 in its entirety.
This is the ORDER of the Court. Dated: January 15, 2013
Rochester, New York
/s/_________
HON. JOHN L. DEMARCO
County Court Judge