People v. White

189 A.D.3d 634

136 N.Y.S.3d 299

The PEOPLE of the State of New York, Respondent,

v.Derrick WHITE, Defendant–Appellant.

12697

12697A

Ind. No. 1591/15

Case No. 2020-01636

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

ENTERED: December 22, 2020

Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Friedman, J.P., Renwick, Singh, Kennedy, Shulman, JJ.

Judgment, Supreme Court, New York County (Melissa C. Jackson, J. at pretrial disclosure rulings; Mark Dwyer, J. at jury trial and sentencing), rendered July 21, 2017, convicting defendant of criminal possession of a weapon in the second degree (two counts), assault in the second degree and reckless endangerment in the first degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 18 years to life; and order, same court (Dwyer, J.), entered on or about October 23, 2019, which denied defendant's CPL 440.10 motion to vacate the conviction, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning identification and credibility. Two eyewitnesses made reliable identifications of defendant as the assailant, and defendant's challenges to those identifications are unpersuasive. The failure of other witnesses to identify defendant was satisfactorily explained, as was the lack of incriminating testimony from the shooting victim. In addition to the identifications, defendant was connected to the crime by strong circumstantial evidence. Furthermore, portions of recorded phone calls he made while awaiting trial had no reasonable explanation other than consciousness of guilt.

The court properly denied defendant's motion to vacate the conviction on the ground that his trial counsel was ineffective in failing to challenge the admission of cell site location information obtained without a warrant. Defendant has not satisfied either the reasonableness or prejudice prongs of a federal or state ineffectiveness claim (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). The trial occurred before the Supreme Court of the United States decided Carpenter v. United States, 585 U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), and a challenge on the ground ultimately accepted in Carpenter would have required calling for a "change in ... existing law" ( People v. Feliciano, 17 N.Y.3d 14, 28, 926 N.Y.S.2d 355, 950 N.E.2d 91 [2011] ). Accordingly, it was objectively reasonable for counsel to rely on then-applicable precedent from this Court rendering the cell site information admissible ( People v. Hall, 86 A.D.3d 450, 451–452, 926 N.Y.S.2d 514 [1st Dept. 2011], lv denied 19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211 [2012], cert denied 568 U.S. 1163, 133 S.Ct. 1240, 185 L.Ed.2d 189 [2013] ). Furthermore, admission of the cell site information, a minor component of the People's strong case, neither deprived defendant of a fair trial nor affected the outcome. To the extent that defendant argues that, as part of his direct appeal, his unpreserved Carpenter claim should be reviewed as a matter of law on the ground that objection would have been futile, we reject that argument (see People v. Crum, 184 A.D.3d 454, 455, 126 N.Y.S.3d 7 [1st Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 404, 152 N.E.3d 1206 [2020] ). To the extent defendant argues that the claim should be reviewed as a matter of discretion in the interest of justice, we decline to do so. As an alternative holding, we find that any error was harmless under all the circumstances of the case.

The court properly denied defendant's motion to suppress identification evidence, finding that defendant was not...