Opinion
09-30-2016
The PEOPLE of the State of New York, Respondent, v. Cordarise HOUSTON, Defendant–Appellant.
Robert M. Graff, Lockport, for Defendant–Appellant. Cordarise Houston, Defendant–Appellant Pro Se. Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
Robert M. Graff, Lockport, for Defendant–Appellant.
Cordarise Houston, Defendant–Appellant Pro Se.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DeJOSEPH, and NEMOYER, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1 ] ), assault in the first degree (§ 120.10[1] ), and criminal possession of a weapon in the second degree (§ 265.03[3] ). The victim called 911 to report that he had been shot in the chest at his home, and he identified defendant, his close friend for many years, as the shooter to both the 911 operator and to a police officer at the scene. The victim sustained at least six gunshot wounds and was left paralyzed from the waist down. At trial, he confirmed that a recording of his 911 call and statements at the scene depicted his voice, but he testified that he had no memory of the shooting.
We reject defendant's contention that County Court erred in admitting the victim's statements to the 911 operator and police officer as excited utterances. The record establishes that the victim made the statements very shortly after the shooting and repeatedly said that he was dying, and we are satisfied that he spoke under the stress of the excitement caused by being shot and severely injured, while “ ‘his reflective capacity was stilled’ ” (People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257, clarification denied 21 N.Y.3d 1070, 974 N.Y.S.2d 316, 997 N.E.2d 141 ; see People v. Mulligan, 118 A.D.3d 1372, 1372–1373, 988 N.Y.S.2d 354, lv. denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 ; People v. Kelley, 46 A.D.3d 1329, 1330–1331, 847 N.Y.S.2d 813, lv. denied 10 N.Y.3d 813, 857 N.Y.S.2d 46, 886 N.E.2d 811 ).
Defendant further contends that the admission of the victim's statements to the police officer violated his constitutional right of confrontation because those statements were testimonial in nature (see generally Crawford v. Washington, 541 U.S. 36, 50–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 ). Even assuming, arguendo, that the victim's alleged memory loss rendered the statements at issue inadmissible if testimonial notwithstanding that defendant had the opportunity to cross-examine the victim at trial (cf. United States v. Owens, 484 U.S. 554, 557–560, 108 S.Ct. 838, 98 L.Ed.2d 951 ; People v. Linton, 21 A.D.3d 909, 910, 800 N.Y.S.2d 627, lv. denied 5 N.Y.3d 853, 806 N.Y.S.2d 173, 840 N.E.2d 142 ), we reject defendant's contention. The record supports the court's determination that the statements were not testimonial, i.e., that the “primary purpose” of the victim's conversation with the officer was to enable the police to address an ongoing emergency, rather than to generate information for use in a future prosecution (Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 ; see Michigan v. Bryant, 562 U.S. 344, 371–378, 131 S.Ct. 1143, 179 L.Ed.2d 93 ; People v. Nieves–Andino, 9 N.Y.3d 12, 15–16, 840 N.Y.S.2d 882, 872 N.E.2d 1188 ; People v. Anderson, 114 A.D.3d 1083, 1084–1085, 981 N.Y.S.2d 200, lv. denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 ; cf. People v. Clay, 88 A.D.3d 14, 21–24, 926 N.Y.S.2d 598, lv. denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 ).
Defendant concedes that the evidence is legally sufficient to support his conviction if the victim's identifying statements were properly admitted, and we reject his contention that the verdict is against the weight of the evidence with respect to the issue of identification (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). “The jury's resolution of credibility and identification issues is entitled to great weight” (People v. Mobley, 49 A.D.3d 1343, 1345, 853 N.Y.S.2d 812, lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 618, 896 N.E.2d 104 [internal quotation marks omitted] ), and the exculpatory scenarios proposed by defendant on appeal are merely speculative (see People v. Rodriguez, 125 A.D.3d 472, 472, 4 N.Y.S.3d 8, lv. denied 26 N.Y.3d 971, 18 N.Y.S.3d 607, 40 N.E.3d 585 ; see generally People v. Bouwens, 128 A.D.3d 1393, 1393–1394, 8 N.Y.S.3d 525 ).
Contrary to defendant's contention, he was not entitled to a complete circumstantial evidence charge inasmuch as “[t]he excited utterances of a victim identifying the shooter constitute direct evidence of guilt” (People v. Vigliotti, 270 A.D.2d 904, 905, 706 N.Y.S.2d 544, lv. denied 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426, reconsideration denied 95 N.Y.2d 970, 722 N.Y.S.2d 488, 745 N.E.2d 409 ; see generally People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 ). Defendant did not object to the prosecutor's allegedly improper remarks on summation, and he thus failed to preserve for our review his contention that those remarks denied him a fair trial (see CPL 470.05[2] ; 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, the remarks in question constituted fair comment on the content of the victim's statements (see People v. Albaladejo, 10 A.D.3d 582, 582, 782 N.Y.S.2d 91, lv. denied 4 N.Y.3d 740, 790 N.Y.S.2d 653, 824 N.E.2d 54 ), and we reject defendant's further contention that defense counsel's failure to object to them deprived him of effective assistance of counsel (see People v. Isaac, 137 A.D.3d 1164, 1165, 27 N.Y.S.3d 272, lv. denied 27 N.Y.3d 1134, 39 N.Y.S.3d 115, 61 N.E.3d 514 ; People v. Hendrix, 132 A.D.3d 1348, 1348, 17 N.Y.S.3d 256, lv. denied 26 N.Y.3d 1145, 32 N.Y.S.3d 59, 51 N.E.3d 570 ).
Defendant also contends that he was denied due process at sentencing by the court's consideration of speculation by the prosecutor concerning the motive for the shooting (see generally People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 ). That contention is not preserved for our review because defendant made no relevant objection at sentencing (see People v. Colome–Rodriguez, 120 A.D.3d 1525, 1525–1526, 992 N.Y.S.2d 652, lv. denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 ; People v. Byrd, 116 A.D.3d 875, 876–877, 983 N.Y.S.2d 406, lv. denied 24 N.Y.3d 1001, 997 N.Y.S.2d 119, 21 N.E.3d 571 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6 ][a] ). We also conclude that defendant has not shown that he was denied effective assistance of counsel at sentencing (see People v. Orengo, 97 N.Y.2d 739, 739–740, 742 N.Y.S.2d 598, 769 N.E.2d 344 ; People v. Saladeen, 12 A.D.3d 1179, 1180, 785 N.Y.S.2d 250, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 ).
We agree with defendant, however, that the sentence is illegal insofar as the court directed that the sentence imposed on the count charging criminal possession of a weapon run consecutively to the sentences imposed on the other counts, and we note that this contention does not require preservation (see People v. Fuentes, 52 A.D.3d 1297, 1300–1301, 859 N.Y.S.2d 841, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 ). The People had the burden of establishing that consecutive sentences were legal, i.e., that the crimes were committed through separate acts (see People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 ; see generally Penal Law § 70.25 [2 ] ), and they failed to meet that burden. There was no evidence presented at trial that defendant's act of possessing a loaded firearm “was separate and distinct from” his act of shooting the victim (People v. Harris, 115 A.D.3d 761, 762–763, 981 N.Y.S.2d 451, lv. denied 23 N.Y.3d 1062, 994 N.Y.S.2d 322, 18 N.E.3d 1143, reconsideration denied 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 ; cf. People v. Evans, 132 A.D.3d 1398, 1398–1399, 17 N.Y.S.3d 576, lv. denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 ; see generally People v. Brown, 21 N.Y.3d 739, 750–752, 977 N.Y.S.2d 723, 999 N.E.2d 1168 ). We therefore modify the judgment by directing that all of the sentences run concurrently. The sentence, as so modified, is not unduly harsh or severe.
Finally, the various contentions in defendant's pro se supplemental brief concerning the court's dismissal of a sworn juror are unpreserved for our review (see People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 ; People v. Astacio, 105 A.D.3d 1394, 1395–1396, 963 N.Y.S.2d 798, lv. denied 22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 ; People v. Rodriguez, 2 A.D.3d 1359, 1360, 769 N.Y.S.2d 423, lv. denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291, reconsideration denied 2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476 ), we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), and we conclude that defendant was not denied effective assistance of counsel by his attorney's handling of the juror's dismissal (see People v. Clark, 139 A.D.3d 1368, 1371, 31 N.Y.S.3d 357 ; see generally People v. Colon, 90 N.Y.2d 824, 825–826, 660 N.Y.S.2d 377, 682 N.E.2d 978 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that all of the sentences imposed shall run concurrently and as modified the judgment is affirmed.