People v. Faison

2021 NY Slip Op 05184

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MAURICE C. FAISON, DEFENDANT-APPELLANT.

No. 278 KA 14-01879

Supreme Court of New York, Fourth Department

October 1, 2021

DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, CURRAN, AND DEJOSEPH, JJ.

Appeal from a judgment of the Monroe County Court (James J Piampiano, J.), rendered July 24, 2014. The judgment convicted defendant upon a jury verdict of murder in the second degree, manslaughter in the first degree, aggravated criminal contempt, criminal contempt in the second degree endangering the welfare of a child and criminal obstruction of breathing or blood circulation.

It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing that part convicting defendant of murder in the second degree and as modified the judgment is affirmed, and a new trial is granted on count one of the indictment.

Memorandum Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [4] [depraved indifference murder of a person less than 11 years old]), manslaughter in the first degree (§ 125.20 [4]), aggravated criminal contempt (§ 215.52 [1]), criminal contempt in the second degree (§ 215.50 [3]), endangering the welfare of a child (§ 260.10 [1]), and criminal obstruction of breathing or blood circulation

(§ 121.11 [a]).

Contrary to defendant's contention, viewing the evidence in light of the elements of murder, manslaughter, and endangering the welfare of a child as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we conclude that the verdict on those counts is not against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]).

We agree with defendant, however, that we must reverse the murder conviction because County Court's instructions created the possibility that the jury convicted him based on a theory different from that set forth in the indictment, as limited by the bill of particulars. "A defendant has a right to be tried only for the crimes charged in the indictment" (People v Petersen, 190 A.D.3d 769, 770 [2d Dept 2021], lv denied 36 N.Y.3d 1123 [2021])." 'Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories'" (id.). We agree with defendant that the People's theory of depraved indifference, as outlined in the bill of particulars, was limited to defendant's assaultive conduct, i.e., his infliction of head injuries by shaking or hitting the child, and that the court's instruction allowed the jury to consider, in addition to the specifically delineated assaultive conduct, defendant's "inaction" after the assault ended. Although defendant did not object to any trial testimony on the ground that it was outside the scope of the bill of particulars and, in fact, he gave testimony in his own defense regarding his post-assaultive conduct, defendant objected during the charge conference to a modification of the depraved indifference charge. The charge, as modified, allowed the jury to, inter alia, consider "the defendant's later inaction as a factor when considering the brutal, prolonged and ultimately fatal course of conduct," and defendant objected on the ground that such proof was outside the scope of the bill of particulars. We therefore modify the judgment by reversing that part convicting defendant of murder in the second degree, and we grant him a new trial on count one of the indictment (see People v Grega, 72 N.Y.2d 489, 493, 498-500 [1988]; People v Barber, 155 A.D.3d 1543, 1544-1545 [4th Dept 2017]). Defendant did not preserve his related contention that the evidence is legally insufficient to support the murder conviction under the limited theory of depraved indifference alleged in the bill of particulars, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Hursh, 191 A.D.3d 1453, 1454 [4th Dept 2021], lv denied 37 N.Y.3d 957 [2021]).

Defendant failed to preserve for our review his further contention that the criminal obstruction of breathing or blood circulation count of the indictment was rendered duplicitous by evidence adduced at trial (see People v Allen, 24 N.Y.3d 441, 449-450 [2014]; Hursh, 191 A.D.3d at 1454), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant's related contention that he was denied effective assistance of counsel based on defense counsel's failure to object or move to dismiss the subject count of the indictment as duplicitous. "To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [make such a motion]" (People v Rivera, 71 N.Y.2d 705, 709 [1988]). Here, we conclude that" 'defendant failed to meet that burden, and thus defense counsel's purported failure, without more, is insufficient to demonstrate ineffective assistance'" (People v Graves, 136 A.D.3d 1347, 1350 [4th Dept 2016], lv denied 27 N.Y.3d 1069 [2016]).

We further reject defendant's contention that the court abused its discretion in its Molineux ruling. It is well established that "[e]vidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity" (People v Dorm, 12 N.Y.3d 16, 19 [2009]). Here, we conclude that such evidence was properly admitted inasmuch as it was relevant to defendant's intent, as well as to provide necessary background information, and the court did not abuse its discretion in determining that the probative value thereof outweighed the potential for prejudice (see People v Hall, 182 A.D.3d 1023, 1024 [4th Dept 2020], lv denied 35 N.Y.3d 1045 [2020]).

Defendant failed to preserve his contention that he was denied a fair trial by certain evidentiary errors (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). With one exception, defendant failed to preserve for our review his further contention that the prosecutor's conduct during cross-examination and opening and closing statements deprived him of a fair trial (see CPL 470.05 [2]). In any event, "[r]eversal on grounds of prosecutorial misconduct is mandated only when the conduct has caused such substantial prejudice to the defendant that he [or she] has been denied due process of law" and, here, we conclude that any improprieties were "not so egregious as to deprive defendant of a fair trial" (People v Lewis, 177 A.D.3d 1351, 1354 [4th Dept 2019], lv denied 34 N.Y.3d 1130 [2020], reconsideration denied 35 N.Y.3d 971 [2020] [internal quotation marks omitted]).

We reject the contention of defendant that he was denied effective assistance of counsel by defense counsel's failure to object to the alleged evidentiary errors and prosecutorial misconduct. Inasmuch as defendant was not denied a fair trial by any alleged instances of prosecutorial misconduct, defense counsel's failure to object to those comments does not constitute ineffective assistance of counsel (see People v Gaston, 100 A.D.3d 1463, 1465 [4th Dept 2012]). Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 N.Y.2d 137, 147 [1981]).

We have reviewed defendant's remaining contentions and conclude that none warrants further modification or reversal of the judgment.

Finally, defendant's sentence is not unduly harsh or severe.

All concur except Lindley, J., who dissents and votes to modify in accordance with the following memorandum: I respectfully dissent in part. The majority concludes that the conviction of murder in the second degree (Penal Law § 125.25 [4]) must be reversed based on County Court's instructions that allowed the jury to consider a theory of prosecution different from that set forth in the indictment, as limited by the bill of particulars. I agree. As a remedy, the majority grants defendant a new trial on count one of the indictment, charging murder in the second degree. This is where the majority and I part ways. Instead of granting a new trial, I would dismiss that count of the indictment with prejudice on the ground that the evidence at trial was legally insufficient to establish defendant's guilt under the theory set forth in the bill of particulars. I agree with the majority that defendant's remaining contentions do not warrant further modification or reversal of the judgment.

Where, as here, there is a "variance between the People's trial evidence and the indictment as amplified by the bill of particulars," we must determine whether the evidence was legally sufficient to support the charged theory (see People v Bradley, 154 A.D.3d 1279, 1281 [4th Dept 2017]). If the evidence is legally insufficient, of course, a retrial would be prohibited by the Double Jeopardy Clauses of the State and Federal Constitutions (see Burks v United States, 437 U.S. 1, 18 [1978]; Matter of Suarez v Byrne, 10 N.Y.3d 523, 532-533 [2008], rearg denied 11 N.Y.3d 753 [2008]; People v King, 181 A.D.3d 1233, 1233 [4th Dept 2020], lv denied 35 N.Y.3d 1027 [2020]).

Count one of the indictment charged defendant with depraved...