BROOKS, MARLAND D., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    410
    KA 12-00898
    PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MARLAND D. BROOKS, DEFENDANT-APPELLANT.
    D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
    DEFENDANT-APPELLANT.
    MARLAND D. BROOKS, DEFENDANT-APPELLANT PRO SE.
    BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
    FOR RESPONDENT.
    Appeal from a judgment of the Steuben County Court (Marianne
    Furfure, A.J.), rendered March 19, 2012. The judgment convicted
    defendant, upon a jury verdict, of murder in the second degree,
    robbery in the first degree, robbery in the third degree and criminal
    possession of a weapon in the third degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of, inter alia, murder in the second degree (Penal
    Law § 125.25 [1]) and robbery in the first degree (§ 160.15 [2]). The
    record establishes that defendant and his girlfriend were social
    visitors to the victim’s home when an altercation broke out between
    defendant and the victim. During the altercation, defendant inflicted
    two stab wounds to the victim’s chest that ultimately caused his
    death. The People also presented evidence that defendant reached into
    the victim’s pocket and took his wallet as defendant and his
    girlfriend left the scene after the stabbing. Defendant raised the
    defense of justification at trial, and he testified on his own behalf
    that the victim initiated the altercation by charging at him with a
    knife.
    We reject defendant’s contention that County Court erred in
    directing that he be restrained with a stun belt during trial. A
    trial court has “broad discretion” in deciding whether a restraint is
    necessary for security reasons as long as it conducts a sufficient
    inquiry into the relevant facts and “makes findings on the record
    showing that the particular defendant before [it] needs such a
    restraint” (People v Buchanan, 13 NY3d 1, 4). We conclude that the
    -2-                           410
    KA 12-00898
    court acted within its discretion in ordering the use of a stun belt
    here based on defendant’s criminal history and his alleged assault of
    a guard while in jail awaiting trial (see People v Harvey, 100 AD3d
    1451, 1451, lv denied 21 NY3d 943; People v Freeman, 184 AD2d 864,
    864-865, lv denied 80 NY2d 903; see generally Buchanan, 13 NY3d at 4).
    We reject defendant’s further contention that he was denied a fair
    trial by his girlfriend’s testimony, on direct examination by the
    prosecutor, that defendant had “just gotten out of jail” shortly
    before the crimes were committed. The court struck that testimony in
    response to defendant’s objection and gave curative instructions that
    were sufficient to alleviate any prejudice (see People v Santiago, 52
    NY2d 865, 866; People v Dewitt, 126 AD3d 579, 579).
    Defendant failed to preserve for our review his contention that
    the verdict is repugnant inasmuch as he did not object to the verdict
    on that ground before the jury was discharged (see People v Alfaro, 66
    NY2d 985, 987; People v Spears, 125 AD3d 1400, 1401, lv denied 25 NY3d
    1172). In any event, we conclude that the verdict is not repugnant
    because defendant’s acquittal of felony murder and robbery in the
    first degree pursuant to Penal Law § 160.15 (1) was not “conclusive as
    to a necessary element” of any of the crimes of which he was convicted
    (People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039; see People
    v Lamont, 113 AD3d 1069, 1072, affd 25 NY3d 315). Where “there is a
    possible theory under which a split verdict could be legally
    permissible, it cannot be repugnant” (People v Muhammad, 17 NY3d 532,
    540), and it is theoretically possible for a person to commit
    intentional murder and robbery in the first degree pursuant to section
    160.15 (2), but not felony murder or robbery in the first degree
    pursuant to section 160.15 (1). For instance, a person could
    intentionally inflict fatal injuries on his or her victim without
    contemporaneous intent to commit a robbery, and then forcibly steal
    property from the dying victim while armed with a deadly weapon—a
    scenario that is consistent with the evidence and jury charge in this
    case.
    By failing to renew his motion for a trial order of dismissal
    after presenting evidence, defendant failed to preserve his challenge
    to the legal sufficiency of the evidence (see People v Hines, 97 NY2d
    56, 61, rearg denied 97 NY2d 678; People v Carbonaro, 134 AD3d 1543,
    1544). In any event, we conclude that the evidence, when viewed in
    the light most favorable to the People (see People v Contes, 60 NY2d
    620, 621), is legally sufficient to establish that defendant’s actions
    were not justified (see People v Folger, 292 AD2d 841, 842, lv denied
    98 NY2d 675), and that he forcibly stole property from the victim
    while the victim was still alive (see generally People v Gerena, 49
    AD3d 1204, 1206, lv denied 10 NY3d 958). Viewing the evidence in
    light of the elements of the crimes as charged to the jury (see People
    v Danielson, 9 NY3d 342, 349), we reject defendant’s contention that
    the verdict is against the weight of the evidence (see generally
    People v Bleakley, 69 NY2d 490, 495). The challenges defendant raises
    on appeal to his girlfriend’s credibility were matters for the jury to
    determine, and we see no reason to disturb its verdict (see People v
    Carson, 122 AD3d 1391, 1393, lv denied 25 NY3d 1161).
    -3-                           410
    KA 12-00898
    Defendant failed to object to any of the prosecutor’s allegedly
    improper summation comments, and thus failed to preserve for our
    review his contention that those comments deprived him of a fair trial
    (see CPL 470.05 [2]; People v Rumph, 93 AD3d 1346, 1347, lv denied 19
    NY3d 967). 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 conclude that the claims of ineffective assistance of
    counsel in defendant’s main brief are without merit. Defense counsel
    was not ineffective in failing to object to the verdict as repugnant
    inasmuch as the objection would have been meritless (see Lamont, 113
    AD3d at 1072; see generally People v Stultz, 2 NY3d 277, 287, rearg
    denied 3 NY3d 702), and counsel was not at fault for defendant’s
    testimony that opened the door to otherwise precluded questioning
    about a prior robbery conviction. Counsel “should not have had to
    anticipate” that defendant would misrepresent his criminal history in
    response to a question whether he was cooperative with the police when
    giving a DNA sample in connection with the instant crimes (People v
    Long, 307 AD2d 647, 648; see People v Lloyd, 199 AD2d 573, 574, lv
    denied 83 NY2d 807).
    Defendant further contends that the People violated their Brady
    obligation by failing to accurately disclose the terms of his
    girlfriend’s cooperation agreement. The agreement disclosed to the
    defense and testified to by defendant’s girlfriend at trial provided
    that she would plead guilty to robbery in the first degree and receive
    a 10-year sentence of imprisonment. Defendant’s girlfriend entered
    her plea after defendant’s trial, and her plea transcript, which is
    attached to defendant’s brief, shows that she pleaded guilty to
    attempted robbery in the first degree with the understanding that her
    sentence of imprisonment would be “no more than” 10 years. She later
    received a 7½-year sentence of imprisonment. Even assuming that the
    transcripts of his girlfriend’s plea and sentencing are properly
    before us, we conclude that defendant has not established that there
    was a Brady violation. Those transcripts are not inconsistent with
    the People’s position that the agreement disclosed to the defense was
    the one in place at the time of trial, and that the People simply
    decided to give defendant’s girlfriend a more favorable plea deal
    after the trial ended (see People v Patchen, 46 AD3d 1112, 1114, lv
    denied 10 NY3d 814), in which case there was no item of evidence that
    should have been disclosed and was not (see generally People v
    Newkirk, 133 AD3d 1364, 1365, lv denied 26 NY3d 1148; People v
    Jenkins, 84 AD3d 1403, 1406, lv denied 19 NY3d 1026). To the extent
    that defendant contends that the People did not fully disclose the
    terms of his girlfriend’s cooperation agreement, or that she was aware
    at the time of trial that she could improve her plea deal through her
    testimony, those contentions involve matters outside the record and
    thus must be raised by a motion pursuant to CPL article 440 (see
    People v Jefferson, 125 AD3d 1463, 1464-1465, lv denied 25 NY3d 990).
    The sentence is not unduly harsh or severe.
    Defendant contends in his pro se supplemental brief that the
    court erred in failing to instruct the jury to consider his
    girlfriend’s crack cocaine intoxication at the time of the events
    -4-                           410
    KA 12-00898
    underlying this case in evaluating her credibility. That contention
    is not preserved for our review because defendant never requested such
    an instruction (see generally People v Lipton, 54 NY2d 340, 351), and
    we conclude in any event that the proposition in question was
    adequately conveyed to the jury by the court’s general instruction on
    witness credibility (see People v Dunston, 100 AD3d 769, 770, lv
    denied 20 NY3d 1098). As a result, we reject defendant’s related pro
    se contention that he was deprived of effective assistance of counsel
    by his attorney’s failure to request a jury instruction concerning his
    girlfriend’s intoxication (see generally People v Tyler, 43 AD3d 633,
    634-635, lv denied 9 NY3d 1010).
    Entered:   May 6, 2016                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 12-00898

Filed Date: 5/6/2016

Precedential Status: Precedential

Modified Date: 10/7/2016