DENNIS, BRANDON, PEOPLE v ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    9
    KA 10-00664
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                               MEMORANDUM AND ORDER
    BRANDON DENNIS, DEFENDANT-APPELLANT.
    MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.
    MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Niagara County Court (Sara S.
    Sperrazza, J.), rendered May 11, 2009. The judgment convicted
    defendant, upon a jury verdict, of murder in the second degree (three
    counts), robbery in the first degree (three counts), attempted robbery
    in the first degree, criminal use of a firearm in the first degree,
    criminal possession of a weapon in the second degree and assault in
    the second degree (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law by directing that the sentences
    imposed on counts 1 through 3 of the indictment shall run concurrently
    with the sentence imposed on count 12 of the indictment and as
    modified the judgment is affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of, inter alia, three counts each of murder in the
    second degree (Penal Law § 125.25 [1], [3] [intentional and felony
    murder]) and robbery in the first degree (§ 160.15 [2] - [4]). We
    reject defendant’s contention that County Court erred in giving a jury
    instruction on consciousness of guilt. According to the evidence
    presented by the People at trial, defendant became a suspect in the
    murder approximately one month after it occurred, and the police
    attempted to locate him at the address listed on his driver’s license,
    as well as at the addresses of his former and current girlfriend. The
    police also informed defendant’s family members that they were looking
    for him. Defendant was arrested almost six months later, when the
    police received information concerning his whereabouts. Defendant was
    driving his current girlfriend’s vehicle and rammed it into a police
    vehicle before surrendering. We conclude that the People thereby
    presented evidence warranting the instruction on consciousness of
    guilt (see People v Solimini, 69 AD3d 657, lv denied 14 NY3d 893;
    People v Young, 51 AD3d 1055, 1056-1057, lv denied 11 NY3d 796) and,
    contrary to defendant’s contention, the People were not required to
    -2-                             9
    KA 10-00664
    prove that defendant was aware that the police were searching for him.
    Defendant did not preserve for our review his further contention
    that the admission of his codefendant’s statement violated the
    Confrontation Clause (see People v Pearson, 82 AD3d 475, lv denied 17
    NY3d 809). In any event, that contention is without merit. The
    codefendant’s statement did not implicate defendant in any wrongdoing
    and thus did not deprive defendant of his US Constitution Sixth
    Amendment right to confront witnesses against him (see People v
    Mack, 89 AD3d 864, 865-866; People v Lewis, 83 AD3d 1206, 1208-1209,
    lv denied 17 NY3d 797). We reject defendant’s contention that the
    court erred in allowing a police investigator to testify for the
    People that he saw defendant and the codefendant together earlier on
    the day of the murder. Inasmuch as the court prohibited the police
    investigator from testifying that he purchased drugs from the
    codefendant during that encounter, we reject defendant’s contention
    that the testimony constituted evidence of a prior bad act of
    defendant. Even assuming, arguendo, that the jury would infer that
    defendant had committed a prior bad act based on the investigator’s
    testimony that he had seen defendant and the codefendant together, we
    conclude that the court did not err in allowing that testimony. The
    police investigator’s testimony served as background information and
    completed the narrative of the events (see People v Lesson, 48 AD3d
    1294, 1296, affd 12 NY3d 823; see generally People v Resek, 3 NY3d
    385, 390), i.e., it informed the jury that defendant and the
    codefendant were together hours before the murder occurred and
    explained how the police identified defendant as a suspect in the
    case. Defendant further contends that the court erred in allowing a
    police lieutenant to testify that two police departments assembled
    photo arrays with defendant’s photograph, thus allegedly giving rise
    to the inference that defendant committed prior bad acts by virtue of
    his having been arrested on two prior occasions. Defendant’s
    contention is not preserved for our review (see People v Woods, 72
    AD3d 1563, 1564, lv denied 15 NY3d 811), 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 note, however, that
    testimony regarding the pretrial identification of defendant in a
    photo array was first elicited by defense counsel during his cross-
    examination of a prosecution witness.
    Defendant also failed to preserve for our review his contention
    that the court erred in failing to discharge two sworn jurors (see
    People v Sanderson, 68 AD3d 1716, 1717, lv denied 14 NY3d 844). In
    any event, the court did not err in allowing the jurors to remain on
    the jury. The jurors were not “grossly unqualified to serve in the
    case” (CPL 270.35 [1]), inasmuch as they did not “ ‘possess[ ] a state
    of mind which would prevent the rendering of an impartial verdict’ ”
    (People v Buford, 69 NY2d 290, 298; see People v Clark, 28 AD3d 1190).
    Although defendant failed to preserve for our review his contention
    that two instances of alleged prosecutorial misconduct deprived him of
    a fair trial (see People v Heide, 84 NY2d 943, 944), we conclude in
    any event that the prosecutor did not in fact engage in any
    misconduct. We reject defendant’s further contention that he was
    -3-                             9
    KA 10-00664
    denied the right to effective assistance of counsel based on the
    failure of defense counsel, inter alia, to object to certain testimony
    and the admission of the autopsy photographs in evidence. Rather,
    viewing defense counsel’s representation as a whole, we conclude that
    defendant received effective assistance of counsel (see generally
    People v Baldi, 54 NY2d 137, 147). In addition, 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 conclude that the verdict is
    not against the weight of the evidence (see generally People v
    Bleakley, 69 NY2d 490, 495).
    We agree with defendant, however, that the sentence is illegal in
    part insofar as the sentences for the first three counts of the
    indictment, charging robbery in the first degree, must run
    concurrently with rather than consecutively to count 12 of the
    indictment, charging felony murder. We therefore modify the judgment
    accordingly. As we held on the codefendant’s appeal, “the robbery was
    the underlying felony for that count of felony murder and thus
    constituted a material element of that offense” (People v Osborne, 88
    AD3d 1284, 1286). We reject defendant’s further contentions that the
    sentence as modified is illegal or is unduly harsh or severe.
    Finally, we note that the certificate of conviction does not
    reflect that defendant was convicted of murder in the second degree
    under count 13 of the indictment, and it fails to recite that the
    sentences imposed on the first three counts of the indictment shall
    run concurrently with each other but consecutively to the sentences
    imposed on counts 11 and 13 of the indictment. The certificate of
    conviction must therefore be amended accordingly (see e.g. People v
    Carrasquillo, 85 AD3d 1618, 1620, lv denied 17 NY3d 814).
    Entered:   January 31, 2012                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00664

Filed Date: 1/31/2012

Precedential Status: Precedential

Modified Date: 10/8/2016