People v. Davis

205 N.Y.S.3d 31

The PEOPLE of the State of New York, Respondent,

v.Tommy DAVIS, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Entered: February 13, 2024

Defendant appeals from a judgment of the Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered January 3, 2018, convicting him, after a jury trial, of attempted murder in the second degree, attempted assault in the first degree, and three counts of criminal possession of a weapon in the second degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 25 years to life.

Caprice R. Jenerson, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Cravath, Swaine & Moore LLP, New York (Scott B. Cohen of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio and Steven C. Wu of counsel), for respondent.

Troy K. Webber, J.P., David Friedman, Lizbeth González, Julio Rodriguez III, Bahaati E. Pitt–Burke, JJ.

RODRIGUEZ, J.

At issue in the present appeal is whether Supreme Court’s consolidated trial of two indictments relating to separate criminal transactions, without appropriate limiting instructions, was reversible error.

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received ho such instruction here.

Accordingly, given the compounded prejudicial effect resulting from the errors of consolidated trial and failure to provide appropriate limiting instructions, the convictions must be vacated and the matter remanded for a new trial of each indictment.

I.

By indictment number 1335/11, defendant was charged with attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1]), attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1]), and two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b], [3] [possession of loaded firearm outside the home and with intent to use unlawfully against another]). The indictment concerned, an October 7, 2010 confrontation between defendant and Juan Camarena, a handyman accompanying superintendent Jose Cruz, while Camarena was working at the building where defendant had been recently fired as superintendent (the 2010 offense). It was undisputed that a gun discharged. A bullet hit Camarena’s cell phone, but he was not injured.

By indictment number 2447/12, defendant was charged with two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b], [3]). This second indictment concerned defendant’s alleged March 22, 2011 possession of a gun that was recovered on the person of his companion, George McLloyd in the course of defendant’s, and then McLloyd’s, arrest (the 2011 offense). Before defendant’s indictment on the 2011 offense, McLloyd was indicted for possession of the gun. McLloyd’s indictment was dismissed after the gun was suppressed as the product of an illegal search. After a mistrial, count two of this indictment was superseded by indictment number 3389/16, which also charged defendant with criminal possession of a weapon in the second degree (Penal Law § 265.03[3]).

The indictments were consolidated by decision and order of Supreme Court (Richard D. Carruthers, J.) dated September 4, 2012,¹ which provided, in relevant part:

"Although both indictments charge the defendant with weapons possession under the theories that he intended to use the weapon unlawfully against another and that possession was outside his home or place of business, each indictment concerns a different weapon, and the alleged offenses took place, respectively, on October 7, 2010 and March 22, 2011. The defendant has filed an affirmation in opposition to consolidation.

"The Court will grant consolidation of the two indictments, which is permissible if the offenses are ‘the same or similar in law.’ CPL § 200.20(2)(c). Both indictments charge the defendant with criminal possession of a weapon in the second degree under the same theories. Furthermore, the evidence of possession of a firearm on October 7, 2010 would be relevant, and admissible to prove the defendant’s possession of a weapon on March 22, 2011 under the theory that he intended to use the weapon unlawfully against another. People v. Herrera, 191 A.D.2d 585 [595 N.Y.S.2d 81] (2nd Dept. 1993); People v. Richardson, 148 A.D.2d 476 [538 N.Y.S.2d 625] (2d Dept. 1989); see People v. Chuang, 96 A.D.3d 590 [947 N.Y.S.2d 37] (1st Dept. 2012)."

Supreme Court’s latter basis for consolidation is authorized by CPL 200.20(2)(b) ("Two offenses are ‘joinable’ when: … such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second" or vice versa).

Defense counsel raised the issue again before the first trial² in an appearance on April 18, 2013, arguing that trying the indictments together would result in undue prejudice given the risk of propensity inference by the jury and, further, that no limiting instruction would sufficiently resolve the ensuing prejudice. The prosecutor argued that the 2010 offense would be material and admissible as to defendant’s intent with respect to the 2011 offense. The prosecutor further noted that appropriate limiting instructions would address the issue and result in separated consideration of the evidence. Supreme Court adhered to its decision, commenting that jurors are and would be capable of making the difficult decisions required.

Defendant’s objection to the consolidation was also raised orally on November 1, 2017, immediately prior to defendant’s retrial. Supreme Court observed that the consolidated trial was law of the case, and defense counsel noted a continued objection.

In the retrial, the jury heard testimony from nine witnesses regarding the 2010 offense: (1) Ilyas Washington, a resident and member of the co-op board of the building in which the offense occurred; (2) William Crumlic, a resident of the same building who heard the gunshot; (3) Officer Feaggins, a responding officer; (4) Jose Cruz, the newly hired superintendent; (5) Officer Vargas, another responding officer; (6) Rawlins Phillip, who installed cameras at the building and observed a prior interaction between defendant and Cruz; (7) Bruce Fonseca, an EMT who responded to treat the alleged victim; (8) Juan Camarena, Cruz’s handyman and the alleged victim in the 2010 offense; and (9), Officer Martinez, who testified regarding gunshot residue.

Regarding the 2011 offense, the jury heard testimony from two witnesses: (1) Detective Kuhnapfel, a member of the regional fugitive task force who, with other members of his team, arrested defendant and George McLloyd on March 22, 2011; and (2) Detective Semler, a firearms analyst who testified that the revolver recovered in the 2011 offense was operable.

As for testimony relating to both offenses, the jury heard from (1) NYPD tape technician Fingall, who provided testimony regarding Sprint report records, Cruz’s 911 calls, and defendant’s jail calls and (2) Detective Bahm, a firearms analyst who testified, among other things, that the fired bullet recovered at the scene of the 2010 offense was not fired from the revolver recovered on George McLloyd’s person in 2011.

In addition to witness testimony, portions of six jail calls were played for the jury (calls 1 through 6). calls 1, 3, and 6 concern the 2010 offense only,³ and calls 4 and 5 discuss only the 2011 offense. Additionally, although call 2 contains information relating to both incidents, the discussions are separated in substance and in time.

Defendant’s theory was that the fired gun involved in the 2010 incident was not defendant’s gun but rather was Camarena’s gun. The defense summation—relying on (1) Cruz’s, testimony that he had told Camarena about defendant’s days-earlier threatening interaction with Cruz, (2) video showing antagonism between Camarena and defendant during an interaction before the shooting, (3) Camarena’s testimony that he started an argument with defendant and was ready to fight, and (4) the fact that no gun was recovered from the scene of the 2010 offense—argued, that Camarena accidentally shot a gun he had brought to the building for protection, and that the gun was then hidden by Camarena or Cruz on the roof and never recovered. As to the 2011 offense, the defense argued that the prosecutor failed to carry their burden in that neither the testimony of the arresting officers nor the substance of the jail phone calls showed that defendant possessed the gun recovered from McLloyd.

The prosecution argued in summation that Cruz and Camarena’s testimony established that defendant shot Camarena with a silver gun and then fled the scene. Responding to defendant’s theory, the prosecution argued that Cruz and Camarena "are just regular people," a "[s]...