Opinion
109026
07-09-2020
The PEOPLE of the State of New York, Respondent, v. Xavier HILTON, Appellant.
Linda B. Johnson, East Greenbush, for appellant. Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman of counsel), for respondent.
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (George J. Hoffman of counsel), for respondent.
Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered November 3, 2016, upon a verdict convicting defendant of the crimes of criminal possession of a firearm and criminal possession of a weapon in the second degree.
In 2016, a police officer with the City of Troy Police Department chased defendant and observed him throw a black object. After defendant was secured, a search of the area revealed the discovery of a dark handgun. In connection with this incident, defendant was charged with criminal possession of a firearm, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. A jury trial was held, at which the count charging defendant with criminal possession of a weapon in the third degree was dismissed at the close of the People's proof upon defendant's motion. At the trial's conclusion, defendant was convicted of the remaining charges. County Court thereafter sentenced defendant to a term of imprisonment. Defendant appeals. We affirm.
Defendant argues that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence because the proof did not establish that he possessed the discovered handgun. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [May 29, 2020] ; see People v. Montes, 178 A.D.3d 1283, 1284, 116 N.Y.S.3d 747 [2019], lv denied 34 N.Y.3d 1161, 120 N.Y.S.3d 246, 142 N.E.3d 1148 [2020] ). When undertaking a weight of the evidence analysis, "[we] must determine whether a different finding would not have been unreasonable; [if not,] then, viewing the evidence in a neutral light and deferring to the factfinder's credibility assessments, we weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony" ( People v. Shabazz, 177 A.D.3d 1170, 1171, 113 N.Y.S.3d 397 [2019] ; see People v. Martinez, 166 A.D.3d 1292, 1293, 88 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1207, 99 N.Y.S.3d 208, 122 N.E.3d 1121 [2019] ).
At trial, a police officer with the City of Troy Police Department stated that, on the day in question, he observed an image of defendant at the police station indicating that defendant was "wanted." Later, the police officer, while on patrol in his vehicle, observed defendant enter a store. The police officer stated that when defendant exited, he started to pull up toward defendant, at which point defendant saw the police officer's vehicle and ran away. The police officer chased after defendant on foot and, while doing so, he saw defendant's arm go up into the air and a black object flew out of his hand. The police officer testified that he was approximately five feet away from defendant when he saw the black object leave defendant's hand and that his pursuit of defendant was "very short." The police officer eventually apprehended and secured defendant and advised other officers who had arrived on the scene about the black object being thrown, as well as the area where he saw it was thrown. Upon a search of the area where defendant had thrown the black object, a dark handgun was discovered.
Another police officer, who assisted with the booking process of defendant at the police station, testified that, during such processing, he overheard part of a phone call that defendant was having with an unidentified female. The processing officer stated that defendant told the female that he was going to be going away, to which the female responded, "Why, because of the gun?" According to the processing officer, defendant answered in the affirmative to this question by the female. The processing officer also clarified that he misheard what defendant had told the female. He stated that he thought defendant said, "I was going away for some grown man shit," but that defendant had said that his son "was gonna be a grown man and shit."
Viewing the foregoing evidence, including the photographs of the handgun where it was discovered, in the light most favorable to the People, we reject defendant's assertion that the evidence was not legally sufficient to show that he possessed the handgun (see People v. Smith, 173 A.D.3d 1441, 1442–1443, 103 N.Y.S.3d 685 [2019], lvs denied 34 N.Y.3d 951, 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ; People v. Picart, 171 A.D.3d 799, 800, 97 N.Y.S.3d 185 [2019], lv denied 33 N.Y.3d 1072, 105 N.Y.S.3d 12, 129 N.E.3d 332 [2019] ; People v. Durham, 146 A.D.3d 1070, 1074, 44 N.Y.S.3d 613 [2017], lvs denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411, 86 N.E.3d 1078, 64 N.Y.S.3d 168, 86 N.E.3d 255[2017] ). Nor do we agree with defendant's weight of the evidence argument. Although a contrary result would not have been unreasonable, after viewing the evidence in a neutral light and deferring to the jury's resolution of the witnesses' credibility, we are satisfied that the verdict was supported by the weight of the evidence (see People v. Oliver, 135 A.D.3d 1188, 1191, 23 N.Y.S.3d 696 [2016], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; People v. Butler, 126 A.D.3d 1122, 1123, 4 N.Y.S.3d 751 [2015], lv denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ).
Defendant's contention that County Court erred in denying his motion for a mistrial is without merit. The record reflects that the prosecutor asked the police officer if, prior to the day in question, he knew who defendant was, to which the police officer merely responded, "Yes." After the response, defendant immediately objected and moved for a mistrial on the basis that any familiarity that the police officer had with him was prejudicial in that the only purpose of such proof was to show that he had bad character. The court denied the motion finding that the question was not prejudicial and that the response thereto did not indicate that the police officer's prior familiarity with defendant was in a criminal context. Because we discern no error in the court's rationale, the denial of the motion did not constitute an abuse of discretion (see People v. Conway, 179 A.D.3d 1218, 1220, 116 N.Y.S.3d 118 [2020], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ; People v. Johnson, 176 A.D.3d 1392, 1396, 113 N.Y.S.3d 294 [2019], lvs denied 34 N.Y.3d 1129, 1131, 118 N.Y.S.3d 545, 554, 141 N.E.3d 501, 510 [2020] ). We further note that the court alleviated any prejudice by striking the question and response and instructing the jury that they were not to be considered evidence (see People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904 [1980] ; People v. Conway, 179 A.D.3d at 1220, 116 N.Y.S.3d 118 ). We reject defendant's prosecutorial misconduct argument premised upon the prosecutor's remarks on summation pertaining to defendant's phone conversation with the unidentified female. In our view, the remarks were not improper because they were fair comment on the evidence (see People v. Nunes, 168 A.D.3d 1187, 1193, 90 N.Y.S.3d 694 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 234, 124 N.E.3d 723 [2019] ). Furthermore, the remarks were not pervasive and flagrant so as to deprive defendant of a fair trial (see People v. Glass, 150 A.D.3d 1408, 1411, 55 N.Y.S.3d 469 [2017], lv denied 30 N.Y.3d 1115, 77 N.Y.S.3d 340, 101 N.E.3d 981 [2018] ). Defendant's remaining challenges to the prosecutor's comments made on either opening or closing statements are not preserved due to the absence of a timely objection thereto (see People v. Fragassi, 178 A.D.3d 1153, 1156–1157, 113 N.Y.S.3d 785 [2019], lv denied 34 N.Y.3d 1128, 118 N.Y.S.3d 543, 141 N.E.3d 499 [2020] ). Even if preserved, these remarks were either fair comment on the evidence or responsive to defense counsel's summation. To that end, defendant's ineffective assistance of counsel claim premised upon his counsel's failure to object to the allegedly prejudicial comments is without merit (see People v. Watkins, 180 A.D.3d 1222, 1233–1234, 120 N.Y.S.3d 500 [2020] ; People v. Kerley, 154 A.D.3d 1074, 1076, 63 N.Y.S.3d 538 [2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ).
Defendant acknowledges that his counsel failed to make a proper motion challenging the makeup of the jury pool and asserts that such failure constituted ineffective assistance. We disagree. Other than cursory observations made by two jurors, there is no evidence in the record showing that the absence of any particular racial group was due to a flawed selection process intended to exclude such group. As such, defendant's argument that he received ineffective assistance of counsel based upon an improper motion is unavailing (see People v. Levy, 52 A.D.3d 1025, 1028, 859 N.Y.S.2d 527 [2008] ).
Defendant also contends that he received ineffective assistance based upon counsel's failure to admit the recording of the entire phone call made between defendant and the unidentified female. Counsel, however, had a legitimate trial strategy to draw the jury's attention to the processing officer's lack of credibility. Indeed, counsel vigorously cross-examined the processing officer about his recollection about the conversation in the phone call. Furthermore, by not admitting the recording, the jury was precluded from hearing any inculpatory statements made therein by defendant. Because defendant failed to show "the absence of strategic or other legitimate explanations for counsel's alleged failure" ( People v. Nicholson, 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 [2016] ; see People v. Turner, 172 A.D.3d 1768, 1772, 101 N.Y.S.3d 756 [2019], lvs denied 34 N.Y.3d 930, 939, 109 N.Y.S.3d 732, 133 N.E.3d 436 [2019] ), we are unpersuaded by this specific claim of ineffective assistance of counsel. Defendant did not request a circumstantial evidence charge and, therefore, his assertion that County Court erred by not giving it is unpreserved (see People v. Ash, 162 A.D.3d 1318, 1322, 80 N.Y.S.3d 495 [2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ). In any event, even assuming that the People's proof consisted solely of circumstantial evidence and that a circumstantial evidence charge was warranted (see People v. Hardy, 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] ), any failure to give such charge was harmless given that the circumstantial evidence of defendant's guilt was overwhelming and "there simply [was] no reasonable possibility, let alone significant probability that the jury would have acquitted here if the circumstantial evidence charge had been given" ( People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994] ; see People v. Jackson, 140 A.D.3d 1771, 1771–1772, 32 N.Y.S.3d 430 [2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 359, 63 N.E.3d 79 [2016] ). That said, when assessing counsel's representation in its entirety, we do not agree with defendant that the failure to request a circumstantial evidence charge, by itself, amounted to ineffective assistance (see People v. McCoy, 169 A.D.3d 1260, 1265–1266, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ; People v. Ramos, 133 A.D.3d 904, 909, 20 N.Y.S.3d 183 [2015], lv denied 26 N.Y.3d 1143, 1149, 32 N.Y.S.3d 57, 51 N.E.3d 568 [2016] ; People v. Gunney, 13 A.D.3d 980, 983, 787 N.Y.S.2d 483 [2004], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ). In this regard, the record discloses that counsel made pretrial motions, delivered cogent opening and closing statements, raised successful objections, thoroughly cross-examined the People's witnesses and obtained the dismissal of one count of the indictment. Accordingly, defendant received meaningful representation (see People v. Flores, 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ; People v. Stetin, 167 A.D.3d 1245, 1250–1251, 90 N.Y.S.3d 353 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 609, 121 N.E.3d 236 [2019] ; People v. Scaringe, 137 A.D.3d 1409, 1418, 27 N.Y.S.3d 712 [2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 364, 63 N.E.3d 84 [2016] ).
Garry, P.J., Clark, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.