Opinion
325 KA 18-02110
06-09-2023
The PEOPLE of the State of New York, Respondent, v. Willie D. MCKOY, Also Known as June, Defendant-Appellant. (Appeal No. 1.)
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed on count two of the indictment shall run concurrently with the sentence imposed on count one of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree ( Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03 [3]), arising from the fatal shooting of the victim as he sat in the front passenger seat of a vehicle in a parking lot at night.
Defendant contends that he was denied a fair trial by prosecutorial misconduct because the prosecutor failed to correct trial testimony that he knew to be false when two eyewitnesses gave discrepant accounts whether they had seen and spoken with each other in the parking lot. Defendant failed to preserve that contention for our review (see CPL 470.05 [2] ; People v. Reed , 151 A.D.3d 1821, 1823, 57 N.Y.S.3d 311 [4th Dept. 2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ; People v. Mulligan , 118 A.D.3d 1372, 1374, 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] ) and, in any event, it lacks merit. Although a prosecutor has a "duty to correct [trial testimony that the prosecutor] knows to be false and [to] elicit the truth" ( People v. Savvides , 1 N.Y.2d 554, 557, 154 N.Y.S.2d 885, 136 N.E.2d 853 [1956] ; see People v. Colon , 13 N.Y.3d 343, 349, 890 N.Y.S.2d 424, 918 N.E.2d 936 [2009], rearg denied 14 N.Y.3d 750, 898 N.Y.S.2d 541, 925 N.E.2d 579 [2010] ; People v. Williams , 61 A.D.3d 1383, 1383, 879 N.Y.S.2d 264 [4th Dept. 2009], lv denied 13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 [2009] ), the record contains no evidence that the prosecutor knowingly elicited or failed to correct false testimony or misled the jury (see Reed , 151 A.D.3d at 1823, 57 N.Y.S.3d 311 ; Mulligan , 118 A.D.3d at 1374, 988 N.Y.S.2d 354 ; Williams , 61 A.D.3d at 1383, 879 N.Y.S.2d 264 ; People v. Encarnacion , 269 A.D.2d 779, 780, 703 N.Y.S.2d 412 [4th Dept. 2000], lv denied 94 N.Y.2d 918, 708 N.Y.S.2d 358, 729 N.E.2d 1157 [2000] ).
Defendant next contends that testimony at trial revealed for the first time that the police located him following the shooting by "pinging" his cell phone, and that any evidence derived therefrom should have been suppressed as the product of an illegal warrantless search. That contention is not properly before us inasmuch as defendant failed to move to reopen the suppression hearing based on the relevant trial testimony (see People v. Huddleston , 160 A.D.3d 1359, 1361, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; see also People v. Carzoglio , 198 A.D.3d 810, 811-812, 155 N.Y.S.3d 210 [2d Dept. 2021], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 178, 201 N.E.3d 795 [2022] ; People v. Jin Zheng , 127 A.D.3d 890, 890, 6 N.Y.S.3d 288 [2d Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ).
Defendant further contends that Supreme Court erred in admitting, over his foundation objection, the testimony of a female acquaintance that defendant sent her text messages following the shooting stating, inter alia, that he was going to be arrested and requesting that the acquaintance provide him with an alibi for the night of the shooting. We reject that contention. Here, although the acquaintance deleted the text messages, and there was no Internet service provider evidence or other technical evidence in this regard, the text messages were properly authenticated, through circumstantial evidence, as sent by defendant (see People v. Pierre , 41 A.D.3d 289, 291, 838 N.Y.S.2d 546 [1st Dept. 2007], lv denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007] ). The acquaintance's testimony established that defendant's phone number was saved in her cell phone under his nickname and that she frequently texted with defendant at that number (see People v. Kingsberry , 194 A.D.3d 843, 844, 143 N.Y.S.3d 887 [2d Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 425, 174 N.E.3d 365 [2021] ; People v. Serrano , 173 A.D.3d 1484, 1488, 103 N.Y.S.3d 648 [3d Dept. 2019], lv denied 34 N.Y.3d 937, 109 N.Y.S.3d 728, 133 N.E.3d 432 [2019] ), and "the identity of the sender[ ] ... of the messages was [also] sufficiently authenticated by the content of the text messages" ( People v. Mencel , 206 A.D.3d 1550, 1552, 168 N.Y.S.3d 774 [4th Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 30, 194 N.E.3d 737 [2022] ; see People v. Green , 107 A.D.3d 915, 916, 967 N.Y.S.2d 753 [2d Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; Pierre , 41 A.D.3d at 291, 838 N.Y.S.2d 546 ). Moreover, "[t]he credibility of the authenticating witness goes to the weight to be accorded the evidence, not to its admissibility" and, to the extent that defendant suggests that someone else could have sent the messages from the phone number associated with him, the likelihood of that scenario "presented a factual issue for the jury to resolve" ( Serrano , 173 A.D.3d at 1488, 103 N.Y.S.3d 648 ; see People v. Tucker , 200 A.D.3d 1584, 1586, 159 N.Y.S.3d 283 [4th Dept. 2021], lv denied 38 N.Y.3d 954, 165 N.Y.S.3d 456, 185 N.E.3d 977 [2022] ).
Contrary to defendant's related contention, we conclude that the court did not err in admitting in evidence a letter allegedly written by defendant to the acquaintance inasmuch as the circumstantial evidence was sufficient to authenticate the letter (see People v. Myers , 87 A.D.3d 826, 827-828, 928 N.Y.S.2d 407 [4th Dept. 2011], lv denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ; People v. Bryant , 12 A.D.3d 1077, 1079, 785 N.Y.S.2d 201 [4th Dept. 2004], lv denied 4 N.Y.3d 761, 792 N.Y.S.2d 5, 825 N.E.2d 137 [2005] ). Contrary to defendant's challenge to the relevance of the letter, inasmuch as the letter could reasonably be interpreted as an attempt to obtain a false alibi from the acquaintance, it "comes within the broad category of conduct evidencing a ‘consciousness of guilt’ and, therefore, [was] admissible and relevant on the question of ... defendant's guilt" ( People v. Leyra , 1 N.Y.2d 199, 208, 151 N.Y.S.2d 658, 134 N.E.2d 475 [1956] ; see generally People v. Moses , 63 N.Y.2d 299, 308, 482 N.Y.S.2d 228, 472 N.E.2d 4 [1984] ). We have reviewed defendant's remaining challenge to the admission of the letter and the testimony concerning the text messages and conclude that it does not warrant reversal or modification of the judgment.
Defendant's contention that the prosecutor erred in eliciting testimony with respect to defendant's invocation of the right to counsel is not preserved for our review (see CPL 470.05 [2] ; People v. Vrooman , 115 A.D.3d 1189, 1190, 982 N.Y.S.2d 248 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ), and 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. Jackson , 41 A.D.3d 1268, 1269-1270, 839 N.Y.S.2d 377 [4th Dept. 2007], lv denied 10 N.Y.3d 812, 857 N.Y.S.2d 45, 886 N.E.2d 810 [2008], reconsideration denied 11 N.Y.3d 789, 866 N.Y.S.2d 616, 896 N.E.2d 102 [2008] ). Contrary to defendant's related contention, he was not denied effective assistance of counsel by defense counsel's failure to object to that fleeting testimony inasmuch as the single error by defense counsel was not "sufficiently egregious and prejudicial as to compromise ... defendant's right to a fair trial" ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see Vrooman , 115 A.D.3d at 1190, 982 N.Y.S.2d 248 ; Jackson , 41 A.D.3d at 1270, 839 N.Y.S.2d 377 ).
We further conclude that, contrary to defendant's contention, the court did not abuse its discretion in denying his motion for a mistrial based on alleged juror misconduct (see People v. Quinones , 174 A.D.3d 1514, 1516, 106 N.Y.S.3d 519 [4th Dept. 2019], lv denied 34 N.Y.3d 983, 113 N.Y.S.3d 671, 137 N.E.3d 41 [2019] ; see generally People v. Buford , 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 [1987] ).
Defendant further contends that the People improperly introduced, without obtaining an advance ruling and in violation of ( People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901] ), testimony of one of the eyewitnesses that she had observed defendant in possession of the same gun used to shoot the victim a couple of weeks before the shooting. Contrary to defendant's contention, the record establishes that there was no unfairness to him inasmuch as the prosecutor asked for a ruling out of the presence of the jury and the court conducted a hearing with respect to the admissibility of such evidence before the eyewitness testified to the prior bad act or uncharged crime, during which the prosecutor detailed the testimony to be elicited as an offer of proof, defense counsel made arguments in opposition to the admissibility of the testimony, and the court ruled that the testimony was admissible on the ground that its probative value outweighed its prejudicial effect (see People v. Small , 12 N.Y.3d 732, 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 [2009] ; People v. Ventimiglia , 52 N.Y.2d 350, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ). Defendant failed to preserve for our review his related contention that the court erred in failing to provide an immediate limiting instruction with respect to the foregoing Molineux evidence (see CPL 470.05 [2] ; People v. Hildreth , 199 A.D.3d 1366, 1368, 158 N.Y.S.3d 468 [4th Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 698, 181 N.E.3d 1126 [2022] ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ; Hildreth , 199 A.D.3d at 1368, 158 N.Y.S.3d 468 ). We note in any event that the court's "limiting instruction in its jury charge ‘served to alleviate any potential prejudice resulting from the admission of the evidence’ " ( People v. Holmes , 104 A.D.3d 1288, 1289, 960 N.Y.S.2d 831 [4th Dept. 2013], lv denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 [2013] ; see People v. Bibbes , 98 A.D.3d 1267, 1269-1270, 951 N.Y.S.2d 607 [4th Dept. 2012], amended on rearg 100 A.D.3d 1473, 954 N.Y.S.2d 923 [4th Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 690, 981 N.E.2d 287 [2012] ). Defendant also failed to preserve for our review his further contention that the prosecutor elicited testimony that exceeded the court's Molineux ruling (see People v. Green , 196 A.D.3d 1148, 1150-1151, 151 N.Y.S.3d 776 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 785, 178 N.E.3d 432 [2021], reconsideration denied 37 N.Y.3d 1161, 160 N.Y.S.3d 697, 181 N.E.3d 1125 [2022] ; People v. King , 181 A.D.3d 1233, 1235, 119 N.Y.S.3d 359 [4th Dept. 2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 41, 149 N.E.3d 879 [2020] ), and 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] ; King , 181 A.D.3d at 1235, 119 N.Y.S.3d 359 ).
Next, even assuming, arguendo, that an acquittal would not have been unreasonable (see People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), upon acting, in effect, as a second jury by independently reviewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Kancharla , 23 N.Y.3d 294, 302-303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; People v. Delamota , 18 N.Y.3d 107, 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; Danielson , 9 N.Y.3d at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is 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 additional contention, we conclude that the record of the reconstruction hearing conducted by the court supports its determinations that three unmarked documents contained in the court file were not jury notes that had been duly transmitted to the court during deliberations, and that there was thus no failure to comply with the procedures required by CPL 310.30 and People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] with respect to those documents (see People v. Meyers , 162 A.D.3d 1074, 1075, 80 N.Y.S.3d 125 [2d Dept. 2018], affd 33 N.Y.3d 1018, 102 N.Y.S.3d 157, 125 N.E.3d 822 [2019] ).
Furthermore, there is no merit to defendant's contention that reversal is required due to the cumulative effect of alleged errors that occurred during trial (see People v. Wilson , 96 A.D.3d 1470, 1471, 946 N.Y.S.2d 390 [4th Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 479, 975 N.E.2d 925 [2012] ; People v. Drayton , 270 A.D.2d 826, 827, 705 N.Y.S.2d 317 [4th Dept. 2000], lv denied 95 N.Y.2d 834, 713 N.Y.S.2d 141, 735 N.E.2d 421 [2000] ).
We agree with defendant, however, that the sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the sentence imposed for murder in the second degree (see People v. Colon , 196 A.D.3d 1043, 1047, 149 N.Y.S.3d 732 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 442 [2021] ; People v. Alligood , 192 A.D.3d 1508, 1510, 140 N.Y.S.3d 809 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 679, 172 N.E.3d 791 [2021] ). The People had the burden of establishing that the consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions (see People v. Rodriguez , 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015] ; see generally Penal Law § 70.25 [2] ), and they failed to meet that burden. In particular, the People "failed to present evidence at trial that defendant's act of possessing the loaded firearm [on the date of the offenses as alleged in the indictment] ‘was separate and distinct from’ his act of shooting the victim" ( Alligood , 192 A.D.3d at 1510, 140 N.Y.S.3d 809 ; see Colon , 196 A.D.3d at 1047, 149 N.Y.S.3d 732 ). We therefore modify the judgment accordingly. The sentence, as so modified, is not unduly harsh or severe.