People v. Griffin

203 A.D.3d 1608

164 N.Y.S.3d 345

The PEOPLE of the State of New York, Respondent,

v.Wendell GRIFFIN, Defendant-Appellant.

1034

KA 21-00605

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

Entered: March 11, 2022

STEVEN M. SHARP, ALBANY, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a jury verdict of murder in the second degree ( Penal Law § 125.25 [3] [felony murder]) and two counts of robbery in the first degree (§ 160.15 [1], [2]), in connection with the shooting death of the victim that occurred during the course of a robbery. We affirm.

Defendant contends that the conviction is not supported by legally sufficient evidence because the People did not establish that a robbery occurred, which is an element of all the counts of which defendant was convicted. Insofar as relevant here, a person commits felony murder when he or she "[a]cting either alone or with one or more other persons, ... commits or attempts to commit robbery ... and, in the course of and in furtherance of such crime or of immediate flight therefrom, he [or she], or another participant ... causes the death of a person other than one of the participants" ( Penal Law § 125.25 [3] ). "A person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime ... [either c]auses serious physical injury to another person who is not a participant in the crime; or ... [i]s armed with a deadly weapon" (§ 160.15 [1], [2]).

Contrary to defendant's contention, the evidence, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Specifically, we conclude that a rational jury could have inferred beyond a reasonable doubt that defendant committed felony murder and robbery by participating in a robbery that resulted in the shooting death of the victim. There is ample evidence to establish defendant's identity as a perpetrator of the charged crimes inasmuch as surveillance video clearly showed defendant and the codefendant acting in concert in the moments leading up to the codefendant shooting the victim. Supporting the inference that defendant participated in a robbery is evidence that the victim often wore a necklace, but that the necklace was not found on the victim's body after his death (see People v. Good , 201 A.D.2d 254, 254-255, 607 N.Y.S.2d 27 [1st Dept. 1994] ). Further, defendant's course of conduct depicted on the surveillance video fit a " ‘pattern common to robberies’ " that would allow the jury to reasonably infer that he robbed the victim ( People v. Lamont , 25 N.Y.3d 315, 321, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015] ; see People v. Gordon , 23 N.Y.3d 643, 652-653, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ; People v. Luke , 279 A.D.2d 534, 535, 719 N.Y.S.2d 122 [2d Dept. 2001], lv denied 96 N.Y.2d 785, 725 N.Y.S.2d 650, 749 N.E.2d 219 [2001] ). The surveillance video showed defendant peering into the parked vehicle in which the victim was sleeping as though he was casing it, keeping other people who may have interfered to thwart the robbery away from the sleeping victim, and—most crucially—reaching into the vehicle in the vicinity of the victim's neck moments before the shooting and then running away as though he was holding something (see People v. Reed , 22 N.Y.3d 530, 532, 535, 983 N.Y.S.2d 752, 6 N.E.3d 1108 [2014], rearg denied 23 N.Y.3d 1009, 992 N.Y.S.2d 770, 16 N.E.3d 1249 [2014] ; Luke , 279 A.D.2d at 535, 719 N.Y.S.2d 122 ; People v. Hope , 128 A.D.2d 638, 638-639, 512 N.Y.S.2d 885 [2d Dept. 1987], lv denied 69 N.Y.2d 1005, 517 N.Y.S.2d 1038, 511 N.E.2d 97 [1987] ). In short, "[a]lthough the surveillance footage did not clearly show defendant [taking the necklace from the victim], his other actions on the video ... support a rational inference of [robbery]" ( People v. Johnson , 197 A.D.3d 61, 69, 150 N.Y.S.3d 401 [3d Dept. 2021] ). For the same reasons, viewing the evidence in light of the elements of the crimes as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We reject defendant's contention that he was denied effective assistance of counsel by defense counsel's failure to challenge for cause a prospective juror during jury selection because such a challenge would have had little or no chance of success (see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Although at the beginning of voir dire the prospective juror made statements that raised concerns about her impartiality, after further questioning she unequivocally and credibly stated that she would decide the case based solely on the trial evidence and no longer held the opinions that had previously raised concerns about her impartiality (see People v. Warrington , 28 N.Y.3d 1116, 1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] ; People v. Anderson , 113 A.D.3d 1102, 1103, 977 N.Y.S.2d 549 [4th Dept. 2014], lv denied 22 N.Y.3d 1196, 986 N.Y.S.2d 417, 9 N.E.3d 912 [2014] ; see generally People v. Patterson , 173 A.D.3d 1737, 1739, 102 N.Y.S.3d 853 [4th Dept. 2019], affd 34 N.Y.3d 1112, 117 N.Y.S.3d 660, 140 N.E.3d 982 [2019] ).

We reject defendant's further contention that defense counsel was ineffective because he did not request a circumstantial evidence charge, inasmuch as such a request also "would have had little or no chance of success" ( People v. Lawrence , 192 A.D.3d 1686, 1688, 145 N.Y.S.3d 269 [4th Dept. 2021] [internal quotation marks omitted]). A circumstantial evidence charge "is required only where the evidence against defendant is wholly circumstantial" ( People v. Smith , 145 A.D.3d 1628, 1630, 44 N.Y.S.3d 658 [4th Dept. 2016], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ; see People v. Slade , 133 A.D.3d 1203, 1207, 20 N.Y.S.3d 763 [4th Dept. 2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ), which we conclude is not the case here given, inter alia, the surveillance camera video depicting the robbery and murder (see People v. Geddes , 49 A.D.3d 1255, 1256-1257, 856 N.Y.S.2d 336 [4th Dept. 2008], lv denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 [2008] ; People v. Buskey , 13 A.D.3d 1058, 1059, 787 N.Y.S.2d 796 [4th Dept. 2004] ; see generally People v. Lewis , 300 A.D.2d 827, 829, 752 N.Y.S.2d 172 [3d Dept. 2002], lv denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003] ). Even assuming, arguendo, that defendant was entitled to such a charge, we conclude that the "single error in failing to request such a charge [would] not constitute ineffective representation as it was not so serious as to compromise defendant's right to a fair trial" ( People v. Gunney , 13 A.D.3d 980, 983, 787 N.Y.S.2d 483 [3d Dept. 2004], lv denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005] ; see Geddes , 49 A.D.3d at 1257, 856 N.Y.S.2d 336 ).

We likewise reject defendant's contention that he was deprived of a fair trial through the use of an interpreter who allegedly had difficulty accurately interpreting a witness's testimony. Defendant failed to establish "a serious error in translation [or] that the alleged problems with the translation prevented him from conducting an effective cross-examination [of the witness in question] or caused any other prejudice" ( People v. Chowdhury , 180 A.D.3d 455, 456, 119 N.Y.S.3d 443 [1st Dept. 2020] ; see People v. Dat Pham , 283 A.D.2d 952, 952, 725 N.Y.S.2d 245 [4th Dept. 2001], lv denied 96 N.Y.2d 900, 730 N.Y.S.2d 797, 756 N.E.2d 85 [2001] ). Further, to the extent that "there were occasional difficulties in translation, they were sufficiently rectified so that the [witness's] testimony was properly presented to the jury" ( People v. Kowlessar , 82 A.D.3d 417, 418, 918 N.Y.S.2d 41 [1st Dept. 2011] ; see People v. Restivo , 226 A.D.2d 1106, 1107, 642 N.Y.S.2d 143 [4th Dept. 1996], lv denied 88 N.Y.2d 883, 645 N.Y.S.2d 458, 668 N.E.2d 429 [1996] ). Defendant's further contentions that the interpreter was not properly sworn and that County Court should have conducted an inquiry into the accuracy of the translation are not preserved for our review (see generally People v. Maldonado , 140 A.D.3d 1530, 1530, 33 N.Y.S.3d 778 [3d Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 381, 68 N.E.3d 110 [2016] ; People v. Rodriguez , 32 A.D.3d 1203, 1204, 821 N.Y.S.2d 331 [4th Dept. 2006], lv denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 [2007] ; People v. Hubbard , 184 A.D.2d 781, 781, 585 N.Y.S.2d 483 [2d Dept. 1992], lv denied 80 N.Y.2d 1027, 592 N.Y.S.2d 677, 607 N.E.2d 824 [1992] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).

We also reject defendant's contention that, at trial, the court erred in allowing a police detective to identify defendant in a surveillance video depicting the robbery and shooting. "A lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury" ( People v. Graham , 174 A.D.3d 1486, 1487-1488, 105 N.Y.S.3d 756 [4th Dept. 2019], lv...