Opinion
850 KA 07-02436
09-26-2014
The PEOPLE of the State of New York, Respondent, v. Charles K. WILSON, Defendant–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, and PERADOTTO, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him following a jury trial of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[2] ), arising from a home invasion, defendant contends that the attempted murder count was rendered duplicitous by the testimony at trial. We agree with defendant, as we agreed with his codefendant on a prior appeal, that the conviction of attempted murder in the second degree must be reversed because, based on the evidence presented at trial, “ ‘the jury may have convicted defendant of an unindicted [attempted murder], resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges' ” (People v. Boykins, 85 A.D.3d 1554, 1555, 924 N.Y.S.2d 711, lv. denied 17 N.Y.3d 814, 929 N.Y.S.2d 802, 954 N.E.2d 93 ). We reach this issue despite defendant's failure to preserve it (see People v. Lane, 106 A.D.3d 1478, 1481, 966 N.Y.S.2d 307, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 ; People v. Filer, 97 A.D.3d 1095, 1096, 947 N.Y.S.2d 743, lv. denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 ). We therefore modify the judgment by reversing that part convicting defendant of attempted murder in the second degree and dismissing the ninth count of the amended indictment. We further agree with defendant that the sentences imposed on the remaining counts must run concurrently with respect to each other, and we therefore further modify the judgment accordingly (see Boykins, 85 A.D.3d at 1555, 924 N.Y.S.2d 711 ).
Contrary to defendant's further contention, Supreme Court did not err in refusing to suppress identification evidence. “ ‘Multiple photo identification procedures are not inherently suggestive’ ” (People v. Dickerson, 66 A.D.3d 1371, 1372, 887 N.Y.S.2d 387, lv. denied 13 N.Y.3d 859, 891 N.Y.S.2d 693, 920 N.E.2d 98 ). “While ‘the inclusion of a single suspect's photograph in successive arrays is not a practice to be encouraged, it does not per se invalidate the identification procedures' ” (People v. Beaty, 89 A.D.3d 1414, 1415, 932 N.Y.S.2d 280, affd. 22 N.Y.3d 918, 977 N.Y.S.2d 172, 999 N.E.2d 535 ; see Dickerson, 66 A.D.3d at 1372, 887 N.Y.S.2d 387 ). Here, although there was not a significant lapse of time between the presentation of the arrays (see Beaty, 89 A.D.3d at 1415, 932 N.Y.S.2d 280 ; cf. Dickerson, 66 A.D.3d at 1372, 887 N.Y.S.2d 387 ), the record establishes that different photographs of defendant were used, that the photographs of defendant appeared in a different location in each photo array (see Dickerson, 66 A.D.3d at 1372, 887 N.Y.S.2d 387 ), and that the fillers were very similar in appearance to defendant (see generally People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 ). We also conclude that the court did not err in determining that defendant's statements to the police during a brief exchange, made by defendant after he refused to waive his Miranda rights, were voluntary and thus were admissible for impeachment purposes (see People v. Maerling, 64 N.Y.2d 134, 140, 485 N.Y.S.2d 23, 474 N.E.2d 231 ; People v. Stephanski, 286 A.D.2d 859, 860, 730 N.Y.S.2d 468 ). Here, the People met their initial “burden at the Huntley hearing of establishing that defendant's ... statements were not the product of ‘improper police conduct’ ” (People v. Rapley [Appeal No. 1], 59 A.D.3d 927, 927, 873 N.Y.S.2d 396, lv. denied 12 N.Y.3d 858, 881 N.Y.S.2d 670, 909 N.E.2d 593 ), and “[d]efendant presented no bona fide factual predicate in support of his conclusory speculation that his statement[s were] coerced” (id. [internal quotation marks omitted] ).
Contrary to defendant's further contention, the court did not abuse its discretion in denying his motion to sever his trial from that of his codefendant (see People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 ). Where counts are properly joined pursuant to CPL 200.40(1), a defendant may nevertheless seek severance for “ ‘good cause shown’ ” (id. ). “Good cause ... includes, but is not limited to, a finding that a defendant ‘will be unduly prejudiced by a joint trial’ ” (id., quoting CPL 200.40[1] ). “Upon such a finding of prejudice, the court may order counts to be tried separately, grant a severance of defendants or provide whatever other relief justice requires” (CPL 200.40[1] ). Here, defendant contends that, if he had testified at trial, he would have been prejudiced by the admission in evidence of a statement of his codefendant indicating that the codefendant had merely “heard” of defendant's involvement in this home invasion. We reject that contention, and we note that the statement is not incriminating and thus does not implicate Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, wherein “the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when his codefendant's incriminating confession is introduced at their joint trial, even if the jury is specifically instructed to consider the confession only against the codefendant” (People v. Eastman, 85 N.Y.2d 265, 271 n. 2, 624 N.Y.S.2d 83, 648 N.E.2d 459 ). Defendant further contends that, if he had testified at trial, he and his codefendant would have been placed in antagonistic positions inasmuch as the codefendant would not have been bound by the court's Sandoval ruling in cross-examining defendant. Defendant is correct that the codefendant would not have been bound by the 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 ; People v. Padilla, 181 A.D.2d 1051, 1052, 581 N.Y.S.2d 966, lv. denied 79 N.Y.2d 1052, 584 N.Y.S.2d 1020, 596 N.E.2d 418 ). Nevertheless, inasmuch as both defendants were charged with principal and accomplice liability for the same crimes, both defendants noticed alibi defenses, and both defendants were familiar to the eyewitnesses prior to the shooting, we see no basis for concluding that defendants would have “antagonized” each other at trial. Had one defendant attacked the other, the “attacking” defendant essentially would have taken the position that the eyewitnesses correctly identified only the “ other” defendant.
Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Defendant's contention that defense counsel was ineffective in failing to request a missing witness charge has no merit because there was no basis for such a charge (see People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800, lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 ), and an attorney's “failure to ‘make a motion or argument that has little or no chance of success' ” does not amount to ineffective assistance (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ). Viewing the evidence in light 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 ), we also conclude that the verdict 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 ). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” (People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829, lv. denied 13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and “the jury was entitled to reject certain portions of the victim's testimony while crediting other portions” (People v. McCray, 96 A.D.3d 1480, 1480, 946 N.Y.S.2d 744, lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 ). It cannot be said that the testimony of the eyewitnesses was “ ‘incredible and unbelievable, that is, impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (People v. Mohamed, 94 A.D.3d 1462, 1463–1464, 942 N.Y.S.2d 305, lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921, reconsideration denied 20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 ).Finally, we have reviewed defendant's remaining contention, and we conclude that it has been rendered academic as a result of our decision herein.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of attempted murder in the second degree and dismissing the ninth count of the amended indictment and by directing that the sentences on the remaining counts shall run concurrently with respect to each other and as modified the judgment is affirmed.