Opinion
432 KA 18-01850
07-01-2022
The PEOPLE of the State of New York, Respondent, v. Donyell J. MCKENZIE, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT. DONYELL J. MCKENZIE, DEFENDANT-APPELLANT PRO SE. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
DONYELL J. MCKENZIE, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, 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 after a nonjury trial of murder in the second degree ( Penal Law § 125.25 [1] ). In the first of defendant's two prior appeals arising from this incident, we affirmed a judgment convicting him upon a jury verdict of that crime ( People v. McKenzie , 81 A.D.3d 1375, 1375, 916 N.Y.S.2d 861 [4th Dept. 2011], revd 19 N.Y.3d 463, 951 N.Y.S.2d 691, 976 N.E.2d 217 [2012] ). In reversing this Court's order, the Court of Appeals ordered a new trial based on its conclusion that defendant was entitled to a jury instruction on the affirmative defense of extreme emotional disturbance (EED) ( McKenzie , 19 N.Y.3d at 469, 951 N.Y.S.2d 691, 976 N.E.2d 217 ). In defendant's second prior appeal, from his conviction of the same crime after the retrial, this Court concluded that defendant had been deprived of his right to counsel because defense counsel permitted defendant to decide whether to exercise a peremptory challenge against a prospective juror, and we therefore reversed the judgment and granted defendant another new trial ( People v. McKenzie , 142 A.D.3d 1279, 1280, 38 N.Y.S.3d 330 [4th Dept. 2016] ). That retrial resulted in the conviction from which defendant now appeals.
To the extent that defendant contends in his main and pro se supplemental briefs that the evidence is legally insufficient to support the conviction because the People did not disprove the defense of justification beyond a reasonable doubt and because he established the EED affirmative defense by a preponderance of the evidence, those contentions are unpreserved for our review inasmuch as defendant failed to move for a trial order of dismissal on those grounds (see People v. Fafone , 129 A.D.3d 1667, 1668, 13 N.Y.S.3d 738 [4th Dept. 2015], lv denied 26 N.Y.3d 1039, 22 N.Y.S.3d 169, 43 N.E.3d 379 [2015] ; People v. Ashline , 124 A.D.3d 1258, 1260, 3 N.Y.S.3d 469 [4th Dept. 2015], lv denied 27 N.Y.3d 1128, 39 N.Y.S.3d 109, 61 N.E.3d 508 [2016] ; see generally People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ). In any event, viewing the evidence in the light most favorable to the People (see People v. Gordon , 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ), we conclude that those contentions lack merit (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). In addition, viewing the evidence in light of the elements of the crime, the defense of justification and the EED affirmative defense in this nonjury trial (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 contentions in his main and pro se supplemental briefs 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 ).
Defendant further contends in his main brief that, because he was not present during an exchange of emails between his attorney, the prosecutor and County Court, he was deprived of the right to be present at all material stages of the trial. We reject that contention. The exchange of emails at issue, which occurred during a break in the charge conference at which defendant was present, "concerned questions of law ..., and thus there was no ‘potential for meaningful input by’ defendant during those proceedings" ( People v. Russo , 4 A.D.3d 777, 778, 771 N.Y.S.2d 768 [4th Dept. 2004], lv denied 2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477 [2004], quoting People v. Roman , 88 N.Y.2d 18, 27, 643 N.Y.S.2d 10, 665 N.E.2d 1050 [1996], rearg denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229 [1996] ; see generally People v. Fabricio , 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 [2004] ).
Contrary to defendant's additional contention in his main brief, the sentence is not unduly harsh or severe.
Defendant's contention in his pro se supplemental brief concerning the People's purported failure to present certain evidence to the grand jury involves matters that are outside the record on appeal and thus must be raised, if at all, by way of a CPL article 440 motion (see People v. Highsmith , 124 A.D.3d 1363, 1365, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015] ). We have considered defendant's further contention in his pro se supplemental brief that he was deprived of effective assistance of counsel by several purported failures on the part of defense counsel and, after viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the 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] ).