People v. Graham

FRANK H. HISCOCK LEGAL AID SOCIETY, BUFFALO (BRITTNEY CLARK OF COUNSEL), FOR DEFENDANT–APPELLANT.

ISIAH GRAHAM, DEFENDANT–APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, 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, murder in the second degree ( Penal Law § 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b]; [3] ). Defendant's conviction stems from his conduct in shooting the victim in the back of the head while walking with him and two others down a street during daylight hours. The man walking next to defendant testified at trial and identified him as the shooter. A week after the murder, defendant was arrested after being chased by police officers responding to a report of shots fired. The police recovered a revolver and a pistol that were lying in a yard through which defendant had run during the chase. In his statements to the police, defendant admitted to possessing the pistol, and forensic evidence established that he was the source of the major component of DNA obtained from that pistol, which the victim had in his possession at the time of the murder and which defendant allegedly stole immediately after shooting him.

We reject defendant's contention in his main and pro se supplemental briefs that County Court erred in allowing in evidence two photographs, taken from his cell phone, that depicted guns. One photograph showed a hand holding what appeared to be the revolver recovered at the time of defendant's arrest, which was the alleged murder weapon, and the other showed defendant holding what appeared to be the pistol also recovered at the time of defendant's arrest. The court properly determined that the photographs were admissible because they were relevant to establish defendant's identity as the shooter, and the probative value outweighed any prejudicial impact (see People v. Alexander, 169 A.D.3d 571, 571, 94 N.Y.S.3d 63 [1st Dept. 2019] ; People v. Bailey, 14 A.D.3d 362, 363, 789 N.Y.S.2d 110 [1st Dept. 2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ; see also People v. Moore [appeal No. 2], 78 A.D.3d 1658, 1659, 912 N.Y.S.2d 825 [4th Dept. 2010], lv denied 17 N.Y.3d 798, 929 N.Y.S.2d 106, 952 N.E.2d 1101 [2011] ).

Defendant further contends in his main brief that the court erred in allowing an officer to identify him in a surveillance video. We agree. "A lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury" ( People v. Russell, 165 A.D.2d 327, 333, 567 N.Y.S.2d 548 [2d Dept. 1991], affd 79 N.Y.2d 1024, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ). Here, "there was no basis for concluding that the [officer] was more likely than the jury to correctly determine whether the defendant was depicted in the video" ( People v. Reddick, 164 A.D.3d 526, 527, 82 N.Y.S.3d 79 [2d Dept. 2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ; see People v. Oquendo, 152 A.D.3d 1220, 1221, 57 N.Y.S.3d 872 [4th Dept. 2017], lv denied 30 N.Y.3d 982, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] ). The officer was not familiar with defendant, and there was no evidence showing that defendant had changed his appearance prior to trial (see Reddick, 164 A.D.3d at 527, 82 N.Y.S.3d 79 ; cf. People v. Sanchez, 21 N.Y.3d 216, 225, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ; People v. Jones, 161 A.D.3d 1103, 1103, 77 N.Y.S.3d 698 [2d Dept. 2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ). We conclude, however, that the error was harmless. The evidence was overwhelming, and there was no significant probability that the error might have contributed to the conviction (see Reddick, 164 A.D.3d at 527, 82 N.Y.S.3d 79 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

Contrary to defendant's additional contention in his main brief, the court properly admitted in evidence certain text messages sent from defendant's cell phone the day before the murder and the following week inasmuch as they had probative value (see Alexander, 169 A.D.3d at 572, 94 N.Y.S.3d 63 ), and the admission of the evidence did not unfairly prejudice defendant (see generally People v. Jones, 147 A.D.3d 1521, 1522, 47 N.Y.S.3d 621 [4th Dept. 2017], lv denied 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017]). Defendant's contention in his main brief that the court erred in allowing an officer to testify regarding his interpretation of the slang used in the messages is unpreserved for our review (see People v. Shire, 77 A.D.3d 1358, 1359, 908 N.Y.S.2d 305 [4th Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ) and, in any event, is without merit (see People v. Barksdale, 129 A.D.3d 1497, 1497–1498, 11 N.Y.S.3d 395 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015], reconsideration denied 26 N.Y.3d 1007, 20 N.Y.S.3d 547, 42 N.E.3d 217 [2015] ).

Defendant's contention in his pro se supplemental brief that his statement to the police on the day of his arrest should have been suppressed because the police did not have probable cause to arrest him is not preserved for our review because defendant moved to suppress that statement only on the ground that it was involuntarily made (see People v. Watson, 90 A.D.3d 1666, 1667, 935 N.Y.S.2d 823 [4th Dept. 2011], lv denied 19 N.Y.3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [2012] ; People v. Crouch, 70 A.D.3d 1369, 1370, 895 N.Y.S.2d 609 [4th Dept. 2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ; People v. Johnson, 52 A.D.3d 1286, 1287, 859 N.Y.S.2d 539 [4th Dept. 2008], lv denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660 [2008] ).

Defendant contends in his main brief that the prosecutor engaged in misconduct during summation by improperly vouching for the credibility of a witness. That contention is not preserved for our review (see People v. Fick, 167 A.D.3d 1484, 1485, 90 N.Y.S.3d 421 [4th Dept. 2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 173, 123 N.E.3d 832 [2019] ), and it is without merit in any event. The prosecutor's comments were fair response to defense counsel's summation, in which defense counsel argued that the witness was not credible (see id. ; People v. Ielfield, 132 A.D.3d 1298, 1299, 18 N.Y.S.3d 229 [4th Dept. 2015], lv denied 27 N.Y.3d 1152, 39 N.Y.S.3d 386, 62 N.E.3d 126 [2016] ). " ‘An argument by counsel that his [or her] witnesses have testified truthfully is not vouching for their credibility’ " ( People v. Roman, 85 A.D.3d 1630, 1632, 925 N.Y.S.2d 310 [4th Dept. 2011], lv denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). We reject defendant's contention in his main brief that he was denied effective assistance of counsel. Inasmuch as the prosecutor did not engage in any misconduct during summation, defendant was not denied effective assistance of counsel by defense counsel's failure to object to the prosecutor's comments (see People v. Eckerd, 161 A.D.3d 1508, 1509, 76 N.Y.S.3d 710 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ; People v. Keels, 128 A.D.3d 1444, 1446, 8 N.Y.S.3d 783 [4th Dept. 2015], lv denied 26 N.Y.3d 969, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015] ). Defendant also contends in his main brief that defense counsel was ineffective in failing to object to certain hearsay testimony that disproved defendant's statement during his second interview with the police that he was at a certain location later on the day of the murder. We conclude that defense counsel's failure to object did not constitute ineffective assistance inasmuch as there was other evidence disproving defendant's statement. 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 [1981] ). In his pro se supplemental brief, defendant contends that he received ineffective assistance of counsel based on defense counsel's failure to move to suppress his statement to the police on the day of his arrest and other evidence on the ground that he was arrested without probable cause. That contention must be raised by way of a motion pursuant to CPL article 440 (cf. Crouch, 70 A.D.3d at 1370–1371, 895 N.Y.S.2d 609 ) inasmuch as " ‘the record on appeal is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel was ineffective for failing to make that motion’ " ( People v. Cooper, 151 A.D.3d 1831, 1831, 57 N.Y.S.3d 816 [4th Dept. 2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ). We reject defendant's contention in his pro se supplemental brief that the evidence is legally insufficient to establish his intent with respect to the murder count and his identity as the shooter. The testimony of the witness who was with defendant at the time of the shooting constituted legally sufficient evidence that defendant was the perpetrator, and defendant's intent to kill may be inferred from his conduct in shooting the victim in the back of the head (see People v. Chase, 158 A.D.3d 1233, 1234–1235, 71 N.Y.S.3d 293 [4th Dept. 2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 101, 103 N.E.3d 1248 [2018] ; People v. Holmes, 260 A.D.2d 942, 943, 690 N.Y.S.2d 292 [3d Dept. 1999], lv denied 93 N.Y.2d 1020, 697 N.Y.S.2d 578, 719 N.E.2d 939 [1999] ). Defendant's further contention in his pro se supplemental brief that the evidence is legally insufficient because that witness was incredible as a matter of law is not preserved for our review inasmuch as defendant did not raise that ground in support of his motion for a trial order of dismissal (see People v. Washington, 160 A.D.3d 1451, 1451, 72 N.Y.S.3d 876 [4th Dept. 2018] ; People v. Wilcher, 158 A.D.3d 1267, 1267–1268, 70 N.Y.S.3d 712 [4th Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ). In any event, we reject that contention (see Wilcher, 158 A.D.3d at 1267–1268, 70 N.Y.S.3d 712 ). Defendant also challenges the weight of the evidence in both his main and pro se supplemental briefs. 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 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 [1987] ).

Contrary to defendant's contention in his main brief, the court did not err in imposing consecutive sentences on the count of murder in the second degree and the count of criminal possession of a weapon in the second degree under Penal Law § 265.03(3) (see People v. Malloy, 33 N.Y.3d 1078, 1079–80, 104 N.Y.S.3d 595, 128 N.E.3d 673, 2019 N.Y. Slip Op. 05061, 2019 WL 2583023, *1 [June 25, 2019] ; People v. Brown, 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013] ; People v. Lozada, 164 A.D.3d 1626, 1627, 84 N.Y.S.3d 630 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ). Finally, we reject defendant's contention in his main and pro se supplemental briefs that the sentence is unduly harsh and severe.