PILATO, MICHAEL A., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1208
    KA 13-01360
    PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MICHAEL A. PILATO, DEFENDANT-APPELLANT.
    LAW OFFICES OF MATTHEW J. RICH, P.C., ROCHESTER (MATTHEW J. RICH OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Vincent M.
    Dinolfo, J.), rendered July 24, 2013. The judgment convicted
    defendant, upon a jury verdict, of murder in the second degree (six
    counts), attempted murder in the second degree (two counts) and arson
    in the second 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 three counts each of intentional murder in the
    second degree (Penal Law § 125.25 [1]) and felony murder in the second
    degree (§ 125.25 [3]), two counts of attempted murder in the second
    degree (§§ 110.00, 125.25 [1]) and one count of arson in the second
    degree (§ 150.15) based on allegations that he intentionally set fire
    to his family’s residence in the middle of the night, killing three of
    the five family members who were inside the residence at the time.
    When the matter proceeded to trial, defense counsel relied
    heavily on the affirmative defense of extreme emotional disturbance
    (EED defense) (see Penal Law § 125.25 [1] [a]), but it is well settled
    that “[o]nly subdivision (1) [of section 125.25], dealing with
    intentional murder, contains a provision for mitigation of the charge
    by the affirmative defense of extreme emotional disturbance” (People v
    Fardan, 82 NY2d 638, 642; see People v Royster, 43 AD3d 758, 759, lv
    denied 9 NY3d 1009). Defendant thus contends that he was denied
    effective assistance of counsel on the ground that, by pursuing the
    EED defense, counsel effectively conceded defendant’s guilt to the
    entire indictment, resulting in the functional equivalent of a guilty
    plea. We reject that contention.
    Here, there was no real issue at trial concerning who had started
    -2-                          1208
    KA 13-01360
    the fire at defendant’s residence. Defendant admitted to a friend and
    his sister’s boyfriend that he had started the fire, revealing
    particulars that no one but the perpetrator could have known, and he
    reeked of gasoline when he was taken into custody within hours after
    the fire erupted. In addition, defendant confessed his guilt to the
    police. Although County Court suppressed the confession, it ruled
    that defendant’s statements to the police could be used by the People
    for impeachment purposes at trial if defendant testified that he did
    not start the fire. Defense counsel thus had “limited options for
    advancing a viable defense” (People v Green, 187 AD2d 259, 259, lv
    denied 81 NY2d 762). Inasmuch as “[t]he evidence of defendant’s guilt
    was overwhelming, and ‘[c]ounsel may not be expected to create a
    defense when it does not exist’ ” (People v Taussi-Casucci, 57 AD3d
    209, 210, lv denied 12 NY3d 788), we conclude under the circumstances
    of this case that defendant received meaningful representation (see
    generally People v Baldi, 54 NY2d 137, 147).
    Although defendant contends that defense counsel was unaware that
    the EED defense did not apply to felony murder, the record does not
    support that contention. Defendant, who was 15 years old at the time
    of the offenses, was charged as a juvenile offender (see CPL 1.20 [42]
    [2]). As opposed to adults charged with both intentional and felony
    murder, juvenile offenders face different sentencing minimums for the
    two offenses (compare Penal Law § 70.00 [2] [a]; [3] [a] [i] with
    § 70.05 [3] [a]). That disparity in the sentencing minimums
    establishes that it was reasonable for defense counsel to pursue a
    strategy focused on obtaining an acquittal on the intentional murder
    counts, even at the expense of exposing defendant to an all but
    certain felony murder conviction. Had defense counsel’s “strategy
    been successful, defendant would have been eligible for a considerably
    lower sentence” (People v Frascone, 271 AD2d 333, 333). We thus
    conclude that, contrary to defendant’s contentions, defense counsel’s
    strategy did not amount to the functional equivalent of a guilty plea
    (see People v Washington [appeal No. 2], 19 AD3d 1180, 1180-1181, lv
    denied 5 NY3d 833; People v Barnes, 249 AD2d 227, 228, lv denied 92
    NY2d 893; cf. People v Barbot, 133 AD2d 274, 275-276), and the court
    did not err in failing to conduct a colloquy with defendant to
    determine whether he expressly consented to that strategy (see
    Washington, 19 AD3d at 1180-1181; People v Chaney, 284 AD2d 998, 998,
    lv denied 96 NY2d 917). Defendant’s heavy reliance on Washington (
    5 Misc 3d 957
    , 957, revd 19 AD3d 1180) is misplaced inasmuch as there is
    no evidence on this record that defense counsel pursued such a
    strategy “without defendant’s consent” (19 AD3d at 1180). We have
    reviewed defendant’s remaining challenges to the effectiveness of
    counsel and conclude that they lack merit (see generally People v
    Caban, 5 NY3d 143, 152).
    Contrary to the contention of defendant, the court did not err in
    denying defense counsel’s requests to dismiss the felony murder counts
    under the merger doctrine (see People v Steen, 107 AD3d 1608, 1609, lv
    denied 22 NY3d 959; People v Couser, 12 AD3d 1040, 1041, lv denied 4
    NY3d 762), or to charge the jury on the EED defense with respect to
    those counts (see Fardan, 82 NY2d at 642; Royster, 43 AD3d at 759).
    -3-                          1208
    KA 13-01360
    Defendant further contends that he was denied his right to
    testify in his own defense at trial. Even assuming, arguendo, that
    defendant was not required to preserve that contention for our review,
    we conclude that it lacks merit. Although there is a “fundamental
    precept that a criminal defendant has the right to testify in his or
    her own defense guaranteed by the Federal and State Constitutions”
    (People v Robles, 115 AD3d 30, 33-34, lv denied 22 NY3d 1202,
    reconsideration denied 23 NY3d 1042), it is well settled that,
    ordinarily, “the ‘trial court does not have a general obligation to
    sua sponte ascertain if the defendant’s failure to testify was a
    voluntary and intelligent waiver of his [or her] right’ ” (id. at 34;
    see generally People v Fratta, 83 NY2d 771, 772). Contrary to
    defendant’s contention, this case does not present any of the
    “ ‘exceptional, narrowly defined circumstances’ ” in which “ ‘judicial
    interjection through a direct colloquy with the defendant [would] be
    required to ensure that the defendant’s right to testify is
    protected’ ” (Robles, 115 AD3d at 34; see Brown v Artuz, 124 F3d 73,
    79 n 2, cert denied 
    522 US 1128
    ).
    Although defendant contends that he was denied a fair trial by
    prosecutorial misconduct on summation, he concedes that his contention
    is not preserved for our review inasmuch as defense counsel made no
    objection to any of the challenged comments (see People v Glenn, 72
    AD3d 1567, 1568, lv denied 15 NY3d 805). 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]).
    Defendant failed to preserve for our review his contention that
    the conviction is not supported by legally sufficient evidence
    inasmuch as he failed to make a sufficiently specific motion to
    dismiss (see People v Gray, 86 NY2d 10, 19) and, moreover, he failed
    to renew his motion after presenting evidence (see People v Hines, 97
    NY2d 56, 61, rearg denied 97 NY2d 678). In any event, we reject
    defendant’s contention that the conviction is not supported by legally
    sufficient evidence (see generally People v Bleakley, 69 NY2d 490,
    495) and, upon 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 Bleakley, 69 NY2d at 495).
    Finally, we address defendant’s contentions concerning the
    sentence. We conclude that New York’s sentencing statutes, which
    provide for indeterminate life sentences for juvenile offenders
    convicted of the crimes of murder of which defendant was convicted, do
    not violate the state or federal prohibitions against cruel and
    unusual punishment (see People v Taylor, 136 AD3d 1331, 1332-1333, lv
    denied 27 NY3d 1075; cf. Miller v Alabama, ___ US ___, ___, 
    132 S Ct 2455
    , 2460), and we further conclude that the sentence is not unduly
    harsh or severe.
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 13-01360

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016