Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Dean Orlando PIZARRO, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
Memorandum: On appeal 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] ), defendant contends that he was denied a fair trial and his right of confrontation by the admission in evidence of out-of-court statements made by a codefendant. We reject that contention.
Defendant contends that County Court erred in allowing a witness to testify to statements made by a nontestifying codefendant. Defendant objected to that testimony on hearsay grounds, and later sought a mistrial on the ground that the admission of the statement violated his rights under Bruton v. United States , 391 U.S. 123, 135–136, 88 S.Ct. 1620, 20 L.Ed.2d 476, and we address first his Bruton contention. Even assuming, arguendo, that defendant's belated motion for a mistrial is sufficient to preserve for our review his current Bruton contention (cf. People v. Shabazz, 289 A.D.2d 1059, 1060, 735 N.Y.S.2d 691, cert. denied 537 U.S. 1165, 123 S.Ct. 976, 154 L.Ed.2d 903, affd. 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146, rearg. denied 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40 ), we conclude that the introduction of the statements did not implicate the principles of the Confrontation Clause that underlie the rule in Bruton.
The statements at issue were made by a nontestifying codefendant to a person who testified at trial. That witness testified that the codefendant said before the incident that "we" were going to shoot the victim, and that after the incident the codefendant said that "we" had shot him. The witness testified that defendant was one of several people who were with the codefendant when the statements were made, but the witness then clarified that the codefendant also stated that both he and another perpetrator shot the victim, and the other perpetrator, who was also present during the conversation, agreed. With respect to defendant, the codefendant's "confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial" ( Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 ; see Gray v. Maryland, 523 U.S. 185, 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 ). " ‘Bruton and its progeny ... do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant’ " ( People v. Cedeno, 27 N.Y.3d 110, 118, 31 N.Y.S.3d 434, 50 N.E.3d 901, cert. denied – –– U.S. ––––, 137 S.Ct. 205, 196 L.Ed.2d 133 ). To the contrary, it is well settled that "Richardson placed outside the scope of Bruton 's rule those statements that incriminate inferentially" ( Gray, 523 U.S. at 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 ). Thus, inasmuch as the statements are only inculpatory with respect to defendant when combined with other evidence establishing that he was also part of the crime, we conclude that the court did not err in admitting the nontestifying codefendant's statements because they were "not facially incriminating[ with respect to defendant], and proper limiting instructions were given to the jury concerning the use of the codefendant's statement[s] as evidence against [this] defendant [ ]" ( People v. Marcus, 137 A.D.2d 723, 723, 524 N.Y.S.2d 806, lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 903 ; see People v. Gilocompo, 125 A.D.3d 1000, 1001, 4 N.Y.S.3d 288, lv. denied 25 N.Y.3d 1163, 15 N.Y.S.3d 296, 36 N.E.3d 99 ; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657 ).
"In addition, the testimony of the [witness] concerning a conversation between [an] accomplice and defendant did not violate defendant's right of confrontation because the statements of the ... accomplice during that conversation were not themselves testimonial in nature" ( People
v. Robles, 72 A.D.3d 1520, 1521, 899 N.Y.S.2d 780, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 ). Although the United States Supreme Court "le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial’ " ( Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 ), the Court wrote that such a statement must be " ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’ " ( id. at 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 ). A "casual remark to an acquaintance," such as the statements at issue, does not suffice (id. ; cf. People v. Goldstein, 6 N.Y.3d 119, 129, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834 ).
Contrary to defendant's further contention, the court properly overruled his hearsay objections to the admissibility of those statements. The codefendant's statements to the witness were admissible as statements against penal interest (see generally People v. Shabazz, 22 N.Y.3d 896, 898, 977 N.Y.S.2d 141, 999 N.E.2d 504 ), and as the statements of a coconspirator in the furtherance of the conspiracy (see Robles, 72 A.D.3d at 1521, 899 N.Y.S.2d 780 ; see generally People v. Caban, 5 N.Y.3d 143, 148, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).
Although the court erred in denying, without a Mapp hearing, defendant's midtrial motion to suppress a travel itinerary seized from him by police officers when they initially spoke with him at the Syracuse airport, any error in that regard is harmless (see People v. Massimi, 191 A.D.2d 969, 969, 595 N.Y.S.2d 341 ; see also People v. Lazcano, 66 A.D.3d 1474, 1475, 885 N.Y.S.2d 838, lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 330, 922 N.E.2d 919 ; People v. Michael A.D., 289 A.D.2d 1036, 1037, 736 N.Y.S.2d 212 ). The evidence is cumulative of other properly admitted evidence that defendant was planning on leaving the country and flying to Puerto Rico, and there is no reasonable possibility that the admission of the travel itinerary contributed to defendant's conviction (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation because he failed to object to any of those alleged improprieties (see People v. Young, 100 A.D.3d 1427, 1428, 953 N.Y.S.2d 790, lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 ; People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769, lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 ). In any event, that contention is without merit (see People v. Carrasquillo–Fuentes, 142 A.D.3d 1335, 1338, 37 N.Y.S.3d 800, lv. denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 ). Defendant failed to challenge the proficiency of the appointed interpreter at trial, and thus he also failed to preserve for our review his contention regarding the interpreter's alleged incompetence (see People v. Gutierrez, 100 A.D.3d 656, 656–657, 952 N.Y.S.2d 897, lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 498, 994 N.E.2d 394, reconsideration denied 21 N.Y.3d 1074, 974 N.Y.S.2d 323, 997 N.E.2d 148, cert denied – –– U.S. ––––, 134 S.Ct. 1034, 188 L.Ed.2d 129 ; People v. Kowlessar, 82 A.D.3d 417, 418, 918 N.Y.S.2d 41 ). In any event, that contention is without merit inasmuch as "all instances of possible misunderstanding were sufficiently rectified so that the witness'[s] testimony was properly presented to the jury" ( People v. Nedal, 198 A.D.2d 42, 42, 603 N.Y.S.2d 454 ; see Kowlessar, 82 A.D.3d at 418, 918 N.Y.S.2d 41 ). Defendant further contends that the evidence is legally insufficient to establish his liability as an accessory to the murder charge. We reject that contention. "Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime, intentionally aid another in the conduct constituting the offense" ( People v. Chapman, 30 A.D.3d 1000, 1001, 816 N.Y.S.2d 256, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 [internal quotation marks omitted]; see Penal Law § 20.00 ). Here, based on the evidence in the record, the jury could have reasonably concluded that defendant and the two codefendants shared "a common purpose and a collective objective" ( People v. Cabey, 85 N.Y.2d 417, 422, 626 N.Y.S.2d 20, 649 N.E.2d 1164 ), and that defendant "shared in the intention of the codefendant[s]" to shoot the victim ( People v. Morris, 229 A.D.2d 451, 451, 644 N.Y.S.2d 901, lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623 ). Viewing the evidence in light of the elements of the crime of murder in the second degree 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 ), we reject defendant's contention that the verdict is contrary to the weight of the evidence with respect to that charge (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We agree with defendant, however, that the verdict is contrary to the weight of the evidence with respect to the crime of criminal possession of a weapon in the second degree. Although several witnesses testified that defendant possessed a handgun, and other witnesses testified that the two codefendants fired weapons, the witnesses did not testify that they saw defendant fire his weapon. The evidence further establishes that defendant and the two codefendants were at the scene and all three of them had a weapon, but the casings recovered at the scene matched only two weapons. Furthermore, two different types of projectiles were recovered either at the scene or from the body of the victim, and those projectiles matched the casings from the scene. Although one additional type of projectile was recovered from the body of the victim, the Medical Examiner opined that such projectile was likely from an earlier incident. In addition, defendant was not charged as an accomplice to the codefendants' possession of their weapons (cf. People v. Primakov, 105 A.D.3d 1397, 1397–1398, 963 N.Y.S.2d 496, lv. denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 ; People v. Zuhlke, 67 A.D.3d 1341, 1341, 890 N.Y.S.2d 231, lv. denied 14 N.Y.3d 774, 898 N.Y.S.2d 106, 925 N.E.2d 111 ). Consequently, we conclude that the verdict is against the weight of the evidence with respect to the criminal possession of a weapon count because the People failed to establish that defendant possessed an operable weapon (cf. People v. Hailey, 128 A.D.3d 1415, 1416, 7 N.Y.S.3d 808, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ; see generally People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 ). We therefore modify the judgment accordingly.
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count three of the indictment, and as modified the judgment is affirmed.