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vacating in the interest of justice defendant's third degree weapon possession convictions, which were based on possession of the same weapon underlying his second degree criminal possession of a weapon convictions
Summary of this case from Daughtry v. ConwayOpinion
812
April 23, 2002.
Judgment, Supreme Court, Bronx County (Daniel FitzGerald, J.), rendered July 1, 1999, convicting defendant, after a jury trial, of assault in the first degree, criminal possession of a weapon in the second degree (2 counts), and criminal possession of a weapon in the third degree (2 counts), and sentencing him, as a second felony offender, to an aggregate term of 5 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the convictions for criminal possession of a weapon in the third degree, dismissing those counts of the indictment, and otherwise affirmed.
RAFFAELINA GIANFRANCESCO, for respondent.
LORCA MORELLO PRO SE, for defendant-appellant.
Before: Williams, P.J., Mazzarelli, Saxe, Lerner, Marlow, JJ.
Defendant's motion to set aside the verdict on the ground of newly discovered evidence pursuant to CPL 330.30(3) was properly denied. Under the circumstances, the court properly relied on evidence adduced at a hearing on the codefendant's motion, notwithstanding that defendant elected not to participate in that hearing. After a joint trial, defendant and his codefendant were convicted of acting together in shooting the victim, who was well acquainted with both men. Between the verdict and sentencing, the victim recanted his identification of the codefendant only, claiming to have made a mistaken identification as the result of poor eyesight. This led the codefendant to make a motion to set aside the verdict on the ground of newly discovered evidence, and defendant made a similar motion, alleging that the recantation, while limited to the victim's identification of the codefendant, undermined the victim's credibility for all purposes.
The court conducted a hearing on the codefendant's motion. Defendant, through counsel, declined to participate in this hearing, but with the understanding that defendant would receive any possible benefit in the event that the codefendant's motion was successful. After a thorough hearing, the court denied the codefendant's motion, and subsequently denied defendant's motion on the basis of the evidence adduced at the codefendant's hearing. The court's determination as to the codefendant was ultimately upheld on appeal (People v. Joseph, 276 A.D.2d 306, lv denied 96 N.Y.2d 760), wherein this Court held, inter alia, that, "defendant [referring to codefendant Joseph] and the complainant were well known to each other and the case had nothing to do with mistaken identity. The record supports the court's finding that the complainant's recantation was unworthy of belief."
At the outset, we reject defendant's claim that the codefendant's hearing was a critical stage of the proceedings at which, absent an express personal waiver, defendant had the right to counsel and the right to be present. The hearing was conducted with the specific understanding that it was a hearing on the codefendant's motion alone, and therefore defendant's right to counsel and right to be present were not implicated (People v. Morris, 187 A.D.2d 460, 461, lv denied 81 N.Y.2d 890; see also, People v. Ramos, 262 A.D.2d 587, 94 N.Y.2d 828).
Defendant's claim that he was deprived of effective assistance of counsel by his trial counsel's decision not to participate in the hearing involves trial counsel's strategy and can not be reviewed on this record (see, People v. Love, 57 N.Y.2d 998). To the extent that the existing record permits review, we find that defendant received meaningful representation on the 330.30(3) motion, as well as at trial (see, People v. Benevento, 91 N.Y.2d 708, 713-714). There is no reason to believe that counsel's participation in the hearing would have been beneficial (see,People v. Morris, 187 A.D.2d 460, supra at 462).
We conclude that summary denial of defendant's motion was a proper exercise of discretion (see, People v. Serrata, 261 A.D.2d 490,lv denied 93 N.Y.2d 1045), given the evidence adduced at the codefendant's hearing. As noted, this Court has affirmed the court's denial of the codefendant's motion and there is no reason to reach a different result herein. The victim's recantation of his trial identification of the codefendant was entirely incredible and therefore was not a proper basis upon which to set aside the jury's verdict. We reject defendant's argument that a recantation, in and of itself, reflects so negatively on the victim's credibility that the verdict must be set aside on the ground of newly discovered evidence.
Defendant's contentions regarding uncharged crime evidence do not warrant reversal. Evidence concerning defendant's acrimonious relationship with the victim arising out of their unlawful business was essential to the jury's understanding of defendant's motive to shoot the victim, and defendant's suggestion that the relationship be characterized as a simple business dispute, without revealing the nature of the business, would have unduly limited the probative value of the evidence (see, People v. Vails, 43 N.Y.2d 364). Furthermore, the court properly exercised its discretion in denying defendant's mistrial motion made when, in response to defense counsel's questions which were responsible for eliciting the challenged answers, the victim blurted out additional uncharged crime evidence. Moreover, although a curative instruction would have sufficed to minimize any feared effect of the complainant's answer, defendant refused the court's offer to give the jury such an instruction (see, People v. Young, 48 N.Y.2d 995).
Since defendant's third-degree weapon possession convictions are based on the same possession of the identical weapons underlying his second-degree weapon possession convictions, we vacate the third-degree possession convictions in the interest of justice (People v. Lewis, 278 A.D.2d 165, 166, lv denied 96 N.Y.2d 761).
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.