People v. Taylor

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, 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 [3] ) and robbery in the first degree (§ 160.15 [4]), arising from two separate incidents. We affirm.

Contrary to defendant's contention, County Court did not err in granting the People's motion to amend the indictment to conform to the proof. Such a motion may be granted "provided the amendment does not change the theory of the prosecution or otherwise serve[ ] to prejudice the defendant on the merits" ( People v. Spann , 56 N.Y.2d 469, 473, 452 N.Y.S.2d 869, 438 N.E.2d 402 [1982] ; see CPL 200.70 [1] ). Here, the indictment charged defendant with respect to the second incident with having "fired two shots from a handgun at close range, striking the victim twice and causing his death." As amended and charged to the jury, the indictment alleged with respect to the second incident that defendant "fired three shots from a handgun, at close range, striking the victim, and causing his death." We conclude that the amendment neither changed the theory of the prosecution, nor caused any prejudice to defendant (see Spann , 56 N.Y.2d at 473-474, 452 N.Y.S.2d 869, 438 N.E.2d 402 ; People v. Davis , 167 A.D.2d 862, 863, 562 N.Y.S.2d 260 [4th Dept. 1990], lv denied 77 N.Y.2d 876, 568 N.Y.S.2d 919, 571 N.E.2d 89 [1991] ; People v. Johnson , 115 A.D.2d 794, 795, 496 N.Y.S.2d 306 [3d Dept. 1985] ).

Defendant further contends that his Antommarchi rights were violated because he was not present at the sidebar conference wherein the People initially moved to amend the indictment. We reject that contention. Here, the court "essentially replicated de novo in defendant[’s] ... presence the sidebar conference," and "the record supports the conclusion ... that defendant ... was given a full and fair opportunity to give meaningful input regarding the [motion]" ( People v. Starks , 88 N.Y.2d 18, 29, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996] ; cf. People v. Marzug , 270 A.D.2d 945, 946, 706 N.Y.S.2d 804 [4th Dept. 2000] ).

Defendant's contention regarding the legal sufficiency of the evidence is preserved only in part (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and, in any event, is without merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, 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 reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although defendant contends that the testimony of certain witnesses was incredible as a matter of law, we note that "[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. DeLaCruz , 193 A.D.3d 1340, 1341, 146 N.Y.S.3d 367 [4th Dept. 2021] [internal quotation marks omitted]), and we see no reason to disturb the jury's resolution of those issues.

Because defendant failed to seek a ruling on that part of his omnibus motion seeking to sever the counts of the indictment relating to the separate incidents, we conclude that defendant has abandoned his contention regarding that part of the omnibus motion (see People v. Mulligan , 118 A.D.3d 1372, 1376, 988 N.Y.S.2d 354 [4th Dept. 2014], lv denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 [2015] ; People v. Nix , 78 A.D.3d 1698, 1699, 912 N.Y.S.2d 832 [4th Dept. 2010], lv denied 16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011], cert denied 565 U.S. 843, 132 S.Ct. 157, 181 L.Ed.2d 72 [2011] ).

Defendant also contends that the court deprived him of his constitutional right to a fair and impartial jury by seating a juror who did not unequivocally assure the court of his impartiality. " ‘By failing to raise that challenge in the trial court, however, defendant failed to preserve it for our review’ " ( People v. Irvin , 111 A.D.3d 1294, 1295, 974 N.Y.S.2d 214 [4th Dept. 2013], lv denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014], reconsideration denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). Defendant also failed to preserve for our review his related contention that the court improperly failed to discharge the sworn juror as "grossly unqualified" ( CPL 270.35 [1] ; see People v. Black , 137 A.D.3d 1679, 1679, 27 N.Y.S.3d 776 [4th Dept. 2016], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 110, 61 N.E.3d 509 [2016], reconsideration denied 28 N.Y.3d 1026, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ; People v. Blackshear , 125 A.D.3d 1384, 1386, 3 N.Y.S.3d 239 [4th Dept. 2015], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015] ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). To the extent that defendant contends that reversal is required based on the juror's contact with the court after the verdict and before sentencing, we conclude that defendant's contention is not properly before us inasmuch as he did not move to set aside the verdict on that ground (see CPL 330.30 ; see generally People v. Brown , 265 A.D.2d 893, 894, 698 N.Y.S.2d 117 [4th Dept. 1999], lv denied 94 N.Y.2d 820, 702 N.Y.S.2d 590, 724 N.E.2d 382 [1999] ; People v. Santos-Sosa , 233 A.D.2d 833, 833, 649 N.Y.S.2d 622 [4th Dept. 1996], lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 [1997] ). In any event, the juror did not assert any cognizable type of jury misconduct, and his "complaints regarding the tenor and dynamics of the deliberative process, essentially amounting to belated misgivings or second thoughts, are insufficient to overturn the verdict" ( People v. Redd , 164 A.D.2d 34, 38, 561 N.Y.S.2d 439 [1st Dept. 1990] ; see People v. Brunson , 66 A.D.3d 594, 596, 888 N.Y.S.2d 22 [1st Dept. 2009], lv denied 13 N.Y.3d 937, 895 N.Y.S.2d 328, 922 N.E.2d 917 [2010] ; People v. Karen , 17 A.D.3d 865, 867, 793 N.Y.S.2d 273 [3d Dept. 2005], lv denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269 [2005] ).

Defendant's sentence is not unduly harsh or severe. We have considered defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.