The People, Respondent,v.Pernell A. Flanders, Appellant.BriefN.Y.March 25, 2015To Be Argued By: Time Requested For Argument: STATE OF NEW YoRK Steven G. Cox, Esq. 10 minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff-Respondent, vs. PERNELL A. FLANDERS, Defendant-Appellant. ONEIDA COUNTY INDICTMENT No. 12010-320 APPELLATE DIVISION, FOURTH DEPARTMENT DOCKET No. KA 11-00702 BRIEF FOR PLAINTIFF- RESPONDENT DATE: September 26,2014 STEVEN G. Cox, EsQ. Assistant District Attorney Chief Appellate Counsel Of Counsel SCOTT D. MCNAMARA, ESQ. Oneida County District Attorney 235 Elizabeth Street Utica, New York 13501 315/798-5766 315/798-5582 (fax) TABLE OF CONTENTS Table Of Contents ........................................................................................................................ 2 Table Of Citations ....................................................................................................................... 3 Preliminary Statement .................................................................................................................. 5 Facts ................................................................................................................................................ 6 POINT 1 ....................................................................................................................................... 10 County Court did not constructively amend the indictment, prejudicing defendant ........... 10 POINT II ..................................................................................................................................... 21 County Court properly received the shell casings into evidence ............................................. 21 Conclusion .................................................................................................................................... 24 2 TABLE OF CITATIONS Amaro v City of New York, 40 NY2d 30,42 [1976]--------------------------------------------------- 22 People v Baldi, 54 NY2d 137 [1981]--------------------------------------------------------------------19 People v Bauman, 51 AD 3d 316 [4th Dept. 2008]----------------------------------------------------14 People v Brown, 82 AD 3d 1698 [2011]----------------------------------------------------------------- 20 People v Charles, 61 NY2d 321 [1984] -----------------------------------------------------------------11 People v Clougher, 246 NY 106 [1927]-----------------------------------------------------------------12 People v Connelly, 35 NY2d 171 [197 4] ---------------------------------------------------------------- 22 People v Davis, 72 NY2 d 3 2 [1988] ---------------------------------------------------------------------- 18 People v Fisher, 223 AD2d 493 [1st Dept. 1996], lv. denied 88 NY2d 936 [1996]-------------14 People v Flanders, 111 AD3d 1263 [4th Dept. 2013]--------------------------------------------------9 People v Hines, 39 AD 3d 968 [2007]--------------------------------------------------------------------17 People v Hines, 39 AD3d 968 [2007], lv. denied 9 NY3d 876 [2007] -----------------------------14 People v ]u /ian, 41 NY2d 340 [197 7] ------------------------------------------------------------------- 2 2 People v Kaid, 43 AD 3d 1077 [2d Dept. 2007]--------------------------------------------------------16 People v Kaminski, 58 NY2d 886 [1983]--------------------------------------------------------------- 12 People v Keindl, 68 NY2d 410 [1986]-------------------------------"------------------------------ 16, 18 People v McNab, 16 7 AD2d 858 [4th Dept. 1990]---------------------------------------------------- 14 People v Moyer, 186 AD2d 997 [1992]----------------------------------------------------------------- 22 People v Nicholas, 35 AD2d 18 [3d Dept. 1970]------------------------------------------------------ 11 People v Nuffer, 70 AD 3d 1299 [2010]----------------------------------------------------------------- 20 People v Okafore, 72 NY2d 81 [1988]------------------------------------------------------------------- 14 People v Pyatt, 30 AD 3d 265 [2006]-------------------------------------------------------------------- 17 People v Rivera, 71 NY2d 705 [1988]------------------------------------------------------------------- 19 People v Rooney, 57 NY2d 82 2 [1982]------------------------------------------------------------------ 12 People v Shack, 86 NY2d 529 [1995] -------------------------------------------------------------- 14, 16 People v Snyder, 100 AD 3d 1367 [4th Dept. 2013], lv. denied 21 NY3d 1010 [2013] --------10 People v Sollars, 91 AD2d 909 [1983] ------------------------------------------------------------------ 17 3 People v Spann, 56 NY2d 469 [1982] ------------------------------------------------------------------- 12 People v Wells, 7 NY3d 51 [2006] -----------------------------------------------------------------------15 Strickland v Washington, 466 US 668 [1984] --------------------------------------------------------- 19 4 PRELIMINARY STATEMENT It is uncontested that, on June 26, 2010, defendant Pernell Flanders shot John Thorington following an argument between Thorington's fiancee, Tiffany Harrison, and the mother of his child- defendant's sister. Those shots also endangered Harrison, who was in the immediate vicinity. Defendant was tried and convicted of all four counts in an Oneida County Grand Jury Indictment (#I2010- 320) including attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree and reckless endangerment in the first degree. The conviction for attempted murder in the second degree is uncontested. Counts two and four of the indictment- assault and reckless endangerment in the first degree - specifically alleged that defendant Flanders committed those acts by use of"a .380 semi-automatic pistol and a .22 rifle" (emphasis added). At one point during deliberations, the jury sent out a note requesting clarification on that point. They asked, "(i)n the to wit sections for Counts 2 and 4, must we believe both guns were involved and fired by the defendant. .. ?" (R 425). County Court instructed them that "I don't think there's any requirement that the District Attorney has to prove both guns were involved. It can be either or both." That interpretation oflaw was affirmed by the Appellate Division, Fourth Department and is now before this Court. 5 FACTS On June 26, 2010, defendant Pernell Flanders shot John Thorington multiple times following an argument between Thorington's fiancee, Tiffany Harrison, and the mother of his child, who is the defendant's sister (R166). In the evening after that argument, Thorington saw defendant drive by his house slowly with his vehicle lights off and then pull over. He approached defendant to inquire why he was there. During the conversation, Willie Alexander, Jr., the other occupant of defendant's vehicle, got out of the car and punched Thorington in the head, which led to a fist fight. Defendant approached Thorington, pistol whipped him in the head, then shot him- first with a .380 semi-automatic pistol and then immediately retrieved a .22 rifle from his vehicle and shot him several more times. Defendant then left in his car (R168). Meanwhile, a cab driver near the area heard this and approached to offer help. He was told by Thorington and Harrison, who witnessed the entire altercation, that defendant had shot him. During the trial, the cab driver testified as to what he saw and was told (R175-177). Neighbor Gregory Snyder, an ex-Marine, said he too heard gunshots from both guns and was clearly able to tell that two different weapons were used. He also saw defendant's car leave the scene with the taxi driver following (R184- 186). 6 Utica Police Officer Angela Funicello, an evidence technician assigned to the scene on the night of the attempted murder, testified that she photographed each shell casing that had been marked with a cone by another responding police officer (Philip Dalton, who also testified to marking the shell casings) (R 216). After photographing them, she placed them into evidence bags in the order they were marked (R227). Officer Howard Brodt, who had been first on the scene, testified that there were eight spent shell casings recovered: five belonging to a .380 weapon and three belonging to a .22 weapon (R200). Brodt also testified that he encountered Thorington- still conscious and standing -when he arrived on scene. He was bleeding profusely and appeared to be wounded in his leg, abdomen, shoulder and neck (R205). Likewise, the physician who initially treated Thorington at St. Elizabeth's Hospital in Utica, before transferring him to Upstate Medical Center in Syracuse for surgery, stated he had wounds to his leg, abdomen, buttock, shoulder and neck. A bullet had lodged in Thorington's neck between his Carotid artery and Jugular vein. "Left or right, one to two millimeters, he would have been dead," opined Dr. John Rubin. That bullet could not safely be removed from him, and was left in place (R362). Harrison testified to getting into a fight with defendant's sister earlier that day and that she and Thorington saw defendant outside their home. She witnessed the fight that occurred among Thorington, defendant and Willie Alexander, Jr. And 7 she said that defendant pistol-whipped Thorington, shot him with the pistol, then immediately reached into his car to retrieve a larger gun and shot him again with that (R277). Harrison, who was the subject of the reckless endangerment charge in the fourth count, was between defendant and Thorington, near Thorington's right side, when she saw defendant draw a weapon on him and say "You think I won't shoot you?" Thorington protested, "Shoot me? If you shoot me, your life is over. You're dead" (R274-275). That is when the first shot was fired. Harrison pushed Thorington back towards their car as more shots were fired, as they reached the driver side door of their car. Harrison didn't see that Thorington had been hit, but reported seeing defendant, who had been standing beside his car firing, reach into the rear seat of his car on the driver's side and pulled out a large gun- "it was long, had a skinny barrel to it, and it looked like a rifle" - and began shooting from his hip with that (R276-277). She heard four or five more shots- not as loud as the previous shots- while Thorington was standing behind the driver's door. However, she still did not know he was hit until the shooting stopped and she saw blood on her own sleeve (R278-279). Defendant was convicted of all four counts of the indictment following his jury trial. At one point during deliberations, the jury sent out a note requesting 8 clarification. The jurors asked "(i)n the to wit sections for Counts 2 and 4, must we believe both guns were involved and fired by the defendant, 380 semi-automatic pistol and 22 rifle?" (R425). County Court instructed them that "I don't think there's any requirement that the District Attorney has to prove both guns were involved. It can be either or both." Appellate Division affirms that ruling ... The New York Supreme Court, Appellate Division Fourth, Department, affirmed that conviction on November 8, 2013 (see People v Flanders, 111 AD3d 1263 [4th Dept. 2013]; A15-20). That court specifically observed that County Court charged the jury "it was alleged that defendant committed assault in the first degree by intentionally injuring the victim with a' .380 semi-automatic pistol and a 22 caliber rifle"' (emphasis in original) (A IS). Likewise, the Court below noted that County Court instructed the jury on reckless endangerment in the conjuctive (Al6). The court below found, citing the authority of People v Snyder, 100 AD 3d 1367 [4th Dept. 2012], lv denied21 NY3d 1010 [2012], that the multiple shots fired from two separate firearms "constituted a single, uninterrupted assault, rather than a series of distinct criminal acts" (A16). 9 POINT I County Court did not constructively amend the indictment, prejudicing defendant. Defendant contends that County Court erred when it charged the jury, following a note requesting clarification, that they could find that the use of either weapon, not both, was sufficient to find defendant guilty of assault or reckless endangerment. Defendant's argument is without merit. A. Reasoning of the Appellate Division was sound. During deliberations, the jurors sent out a note asking "(i)n the to wit sections for Counts 2 and 4, must we believe both guns were involved and fired by the defendant, 380 semi-automatic pistol and 22 rifle?" (R425). County Court instructed them that "I don't think there's any requirement that the District Attorney has to prove both guns were involved. It can be either or both." The Appellate Division drew from their view of the facts of this case that "the evidence at trial established that the multiple shots fired from two separate firearms 'constitute( d) a single uninterrupted assault rather than a series of distinct criminal acts ... , and the assault 'occurred over a short time frame, without apparent abeyance, and was triggered by a single incident of anger"' (People v Snyder, 100 AD3d 1367, 1367 [4th Dept. 2013], lv. denied21 NY3d 1010 [2013](citations omitted)). The court reasonably compared these facts with an 10 incident where a defendant assaults someone with a single handgun, but interrupts the assault long enough to reload. The court below also correctly found reckless endangerment in the first degree to be a crime which "my its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time." The single fourth count of the indictment properly charged defendant with recklessly endangering Tiffany Harrison with serious physical injury when he fired in Thorington's direction with both weapons while she was in the immediate vicinity. Again the conduct of firing either weapon while she was in the immediate vicinity would also fulfil the elements of the statute. The Appellate division majority pointed out that this Court has already held that an indictment the language of which captures multiple things in a single count, any one of which would satisfy the elements of the underlying charge, can lead to conviction upon any one of those things. "Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others" (People v Charles, 61 NY2d 321, 327-328 [1984], quoting People v Nicholas, 35 AD2d 18, 20 [3d Dept. 1970]). 11 In Charles, the indictment alleged that a clerk at the Criminal Court in New York City accepted bribes for the disposition of vehicle and traffic tickets. Although the statute proscribes solicitation or an agreement to accept or acceptance of a bribe (emphasis added), the indictment charged that defendant "solicited, agreed to accept and accepted" a bribe. Charles contends that the prosecution was bound by this use of conjunctive language and that in the absence of an amendment to the indictment the court's instructions in the language of the statute rather than the language of the indictment were error. This Court held that indictment still gave defendant fair notice of the charge he was facing. "Defense counsel was not hampered in his ability to prepare by the use of the language in the indictment and bill of particulars," wrote the Court. The trial court's charge correctly advised jurors that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged (see People v Rooney, 57 NY2d 822 [1982]; People v Spann, 56 NY2d 469 [1982]). The use of the conjunctive "and" rather than the disjunctive "or" in the indictment charged more than the People were required to prove under the statute and did not bind the prosecution to prove all three acts (see People v Clougher, 246 NY 106, 112 [1927]). This, however, can be juxtaposed against what has come to be referred to as Kaminski error. In People v Kaminski, 58 NY2d 886 [1983], this Court found it the 12 trial court erred where the indictment charged forcible compulsion "by means of physical force which overcame earnest resistance" only, but that court charged the jury that defendant could be found guilty if the jury found either such force or a threat placing the victim in fear of immediate death or physical injury- an alternate, uncharged theory. The distinction, however, is that in Kaminski the trial court altered the theory of prosecution advanced by the indictment. In Charles it did not. Nor did the trial court's explanation here alter the theory of prosecution advanced in the indictment. Here, the challenged counts allege that defendant: a) with the intent to cause serious physical injury to John F. Thorington, did cause such injury to such person by means of a deadly weapon, to wit: a .380 semi-automatic pistol and a .22 rifle, and b) recklessly engaged in conduct which created a grave risk of death to another person, to wit: defendant fired a .380 semi-automatic pistol and a .22 rifle in the direction of Tiffany A. Harrison. The assault count could clearly be accomplished by causing injury via either weapon (a deadly weapon) and the reckless endangerment count likewise was proven by testimony that some conduct (the firing of either weapon) created a grave risk of death. Nothing about County Court's instruction to the jury could be construed to have created an alternate theory of prosecution under these circumstances. B. County Court charge did not render the indictment counts duplicitious. 13 Challenges based upon duplicity should be preserved via a motion to dismiss the challenged count (see People v Fisher, 223 AD2d 493 [1st Dept. 1996], lv. denied 88 NY2d 936 [1996]). However, the Fourth Department has found duplicity to be fundamental. "Because defendant's right to be tried and convicted of only those crimes charged in the indictment is fundamental and nonwaivable," defendant's contention regarding (duplicity) does not require preservation (People v McNab, 167 AD2d 858 [4th Dept. 1990]). "Whether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act" (People v Shack, 86 NY2d 529, 540-541 [1995]). In People v Bauman, 51 AD3d 316 [4th Dept. 2008], the Fourth Department found that a count alleging assault by a variety of means and instruments over a significant period of time was duplicitous. The Court concluded that "[i]t is of particular "significan[ce] that the charged conduct was not the product of one 'impulse,' permitting only one prosecution no matter how long the action may continue, but[, rather, the charged conduct was the product of] successive and distinguishable impulses, each able to support a separate charge" (People v Okafore, 72 NY2d 81,87 [1988]; cf People v Hines, 39 AD3d 968, 969-970 [2007], lv. denied 9 NY3d 876 [2007]). The facts here more closely 14 portrait actions that were the product of one distinct "impulse" constituting a single criminal act. The statutory definition of assault in the first degree has never been read so strictly as to encompass only a single act. One can commit assault in the first degree- intentionally causing serious physical injury by means of a deadly weapon- both by firing a handgun at a victim single time or by pistol-whipping that same victim multiple times in succession to within inches of his life with the handle end of that same handgun. Each scenario would stand as a singular criminal transaction and each could arise of a single "criminal impulse." In People v Wells, 7 NY3d 51 [2006], this Court held that a single count of attempted murder in the first degree was not duplicitous even where evidence could not establish with certainty which of two potential victims was the defendant's intended victim. Defendant objected to jury instructions that did not specify which of two detectives defendant shot in the vicinity of was the intended victim, arguing that this would allow the jury to convict without unanimously identifying the individual that defendant sought to kill. During deliberations, the jury sent out a note - similar to the case now before the Court- asking whether the count of attempted murder first applied to "Detective Molina alone or to detectives Molina and/or Weston." The trial court gave no specific advice. The jury was not 15 instructed that it must unanimously find one detective or the other to have been the intended victim. This Court reasoned that because "actual death" was not an element of the attempted murder first count, then the "identity of the person whose death was intended is not relevant in determining whether the crime has been committed." By that same reasoning, the particular deadly weapon used to cause serious physical injury is not of particular importance in an assault first degree charge; neither in recklessly endangering someone is it of particular importance: only that a deadly weapon was used. Further, because assault in the first degree may be accomplished through multiple actions, it can be viewed as a continuing crime. A continuing crime is one that "may be committed either by one act or by multiple acts" (People v Keindl, 68 NY2d 410, 421 [1986]; People v Shack, 86 NY2d 529,540 [1995]). In People v Kaid, 43 AD3d 1077 [2d Dept. 2007], the Second Department reversed a Brooklyn trial court determination that counts of assault in the second degree and menacing were duplicitous. There, three of the four defendants had assaulted the victim with different weapons during the attack, and each weapon caused discrete physical injuries to different parts of his body. Multiple defendants had been charged with acting in concert to commit one single assault. 16 The Second Department wrote "the fact that more than one dangerous instrument allegedly was used by the defendants, and more than one blow was struck causing the complainant several injuries, does not transform this single criminal incident into multiple assaults or acts of menacing which must be charged by separate counts (see People v Hines, 39 AD3d 968 [2007]; People v Pyatt, 30 AD3d 265 [2006]; People v Sollars, 91 AD2d 909 [1983])". Further, the court found no danger that the jury could be less than unanimous: "no such concerns are implicated where, as here, a count charges a single offense but the evidence presented suggests alternative means by which an element of that offense may have been committed." The facts compare very favorably with the case nowbefore this Court. C. Jury unanimity not in question here. Concerns that the jury here could have been less than unanimous - some finding beyond a reasonable doubt that these counts were committed by use of a .380 semi-automatic pistol and others by a .22 rifle- are misplaced here. Identity of the actual deadly weapon at play is not an element of either charge here. Prohibiting duplicitous counts seeks to prevent the possibility that individual jurors might vote to convict a defendant of a count on the basis of different offenses, thus permitting a conviction even though no unanimous verdict has been 17 reached (see People v Davis, 72 NY2d 32, 38[1988]; People v Keindl, 68 NY2d 410, 418 [1986]). To adopt the position taken by Justice Sconiers in dissent at the Appellate Division that two distinct assaults and endangerments occurred which should have been charged separately would, under these facts, have created a multiplicitious indictment, exposing defendant to potential consecutive sentences for acts arising of the same criminal impulse. Victim John Thorington described to the jury being struck in the head during an altercation with defendant Pernell Flanders. Thorington stepped back about ten feet from defendant, realizing he held a small handgun in his hand. Defendant shot Thorington with the pistol twice at that close range. "At first time, I didn't know I was struck, but I got shot in the shoulder," Thorington related. After he stopped shooting with the handgun, defendant "walked over to the car (perhaps five feet away), pulled out a long gun and fired at least five more shots at him. After that, defendant and Alexander hopped back into the car and sped away (R319-321). Altogether, Thorington had been shot at eight times. Officer Funicello, the evidence technician, documented Thorington's wounds photographically. One photograph depicted two distinct bullet wounds to his right thigh; another depicted three bullet wounds- two in his neck and one in his jaw; another depicted two bullet wounds to his left shoulder; another depicted a bullet wound to his left thigh; 18 another depicted a bullet wound to his left buttock; and a final photograph depicted a gash in Thorington's head (R231-234). Altogether that's nine bullet wounds and a gash consistent with being struck by a blunt object. Since eight shell casings were recovered from two weapons, this is significant circumstantial evidence that Thorington was, in fact, struck with both weapons. D. Defendant received effective assistance of counsel. Defendant argues, in Point III of his brief, that he was denied effective assistance of trial counsel when failed to further pursue, by motion for mistrial or other resolution, the decision adverse to him by County Court on how to answer a question posed by the deliberating jury. Defendant's argument is without merit. New York's standard for effectiveness is "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met" (People v Rivera, 71 NY2d 705, 708 [1988], citing, People v Baldi, 54 NY2d 137, 146-147 [1981]). The Supreme Court also enunciated a two-part test in Strickland v Washington (466 US 668 [1984]) requiring "a showing that counsel's performance was deficient and that the deficiency in performance prejudiced defendant." That test was not satisfied by the facts here. 19 In order for a defendant to prevail on a claim of ineffective assistance of counsel, he must show that there was no strategic or legitimate explanation for the lack of a motion or further action after County Court's ruling (People v Brown, 82 AD3d 1698 [2011]). Here, defendant's trial counsel did not bring up the issue of duplicity until jury deliberations when the jury came back with a note asking if they need to find that the defendant used either or both guns (NOTE: Appellant did not include this portion of the transcript in his record on appeal. See Appellate Division Record (APR) 425). When this occurred, defense counsel raised his concern with County Court and was told that the Court disagreed (APR 429). It was clear at that point that an objection or motion would have been futile and quickly moved on to other matters involving the trial. It has long been held "the failure to make motions with little or no chance of success does not constitute ineffective assistance of counsel" (People v Nuffer, 70 AD3d 1299 [2010]). 20 POINT II County Court properly received the shell casings into evidence. A sufficient foundation was laid for admission into evidence of the shell casings recovered at the scene of this shooting. Utica Police Officer Howard Brodt, the first officer on scene, testified that he had located eight spent bullet casings: five .22 caliber long-gun casings and three .380 handgun casings. Officer Philip Dalton, who had also arrived on scene, was with Brodt at the time he discovered the shell casings and placed identifYing evidence cones down by each shell (R219). Brodt assured that those casings were undisturbed until a department evidence technician arrived to process them (R200). Utica Police Officer Angela Funicello, a department evidence technician, testified that one of her roles on scene was to photograph and collect the marked shell casings located by Brodt and Dalton. She photographed and collected the shell casings, placing each in separately numbered bags. However, Funicello did not distinguish between .22 caliber and .380 caliber casings (R225-239). County Court followed up defense counsel's voir dire with several questions to clarity that: each casing was separately marked, numbered and bagged; each bag was sealed by Funicello, as noted by her handwriting and signature; and that, therefore, those were the shell casings she had collected on Leah Street that night. County Court then received the casings into evidence (R237-238). 21 Evidence is admissible if its accuracy and authenticity is shown. One way to prove those is by showing a complete chain of custody (People v Moyer, 186 AD2d 997 [ 1992]). However, the need for a complete chain of custody is relaxed where "circumstances provide reasonable assurances of identity and unchanged condition and it would be impossible or an unreasonable requirements to produce each physical custodian as a witness" (Amaro v City of New York, 40 NY2d 30, 42 [ 1976]). However, the Court goes on to acknowledge in People v Julian, 41 NY2d 340 [1977], that when an "object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent", a simple identification is sufficient to warrant admission (People v Connelly, 35 NY2d 171, 174 [1974]). And, the Court said, failure to establish a chain of custody may be excused "where the circumstances provide reasonable assurances of the identity and unchanged condition" of the evidence. That is the case here. Brodt's testimony that eight shell casings- five .22 caliber casings and .three .380 caliber casings- together with Funicello's testimony that she photographed, separately bagged and marked eight distinct shell casings and that the casings presented to her at trial were those casings was sufficient to establish their admissibility. In Julian, this Court held that where the gap in the chain of custody was relatively minor, but it was nevertheless apparent that the drugs in question were under the care of the police at all times the evidence 22 remained admissible (Julian, 41 NY2d at 344). While the bags had been opened and resealed by the New York State Police Laboratory, which is standard procedure, no significant forensic evidence had been detected. Shell casings themselves are not readily subject to alteration or tampering. The balance of defendant's argument more appropriately questions the weight such evidence might be given by a jury, not its admissibility. 23 Conclusion In accordance with the above, the People respectfully request that the judgment of conviction and the ruling of the Appellate Division, Fourth Department, be unanimously affirmed. 24 Respectfully submitted, SCOTT D. MCNAMARA, EsQ. Oneida County District Attorney By: 1 hl { Cy Steven G. Cox, Esq. Assistant District Attorney, of Counsel 235 Elizabeth Street Utica, New York 13501 (315) 798-5766 (315) 798-5582 (FACSIMILE) DATE: -+y_z_..L,6/_I-+-1--