People v Whitley

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[*1] People v Whitley 2006 NY Slip Op 52417(U) [14 Misc 3d 1205(A)] Decided on December 18, 2006 County Court, Suffolk County Hinrichs, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2006
County Court, Suffolk County

THE PEOPLE OF THE STATE OF NEW YORK,

against

Brian Whitley, Defendant



1936-02



Thomas J. Spota

Suffolk County District Attorney

Catherine Loeffler, Esq.

Assistant District Attorney

Criminal Court Building

200 Center Drive

Riverhead, New York 11901-3310

Michael A. Gajdos, Jr., Esq.

Russo & Gajdos, LLP

Attorney for Defendant

31 West Main Street

Suite 203

Patchogue, New York 11772

C. Randall Hinrichs, J.

Defendant, having been convicted of Robbery in the Second Degree, in violation of Penal Law (PL) § 160.10(2)(b) on June 27, 2006 following a jury trial, has brought a motion, pursuant to Criminal Procedure Law (CPL) § 330.30(1), to set aside the verdict. The People oppose the motion. Specifically, defendant claims: 1) the testimony of the co-defendant who testified against defendant at trial was incredible as a matter of law; 2) the testifying co-defendant's testimony was uncorroborated in violation of CPL § 60.22; 3) defendant was denied a fair trial as the result of evidence having been destroyed by the police and the People being permitted to introduce photographs and testimony regarding the destroyed evidence; 4) the verdict was against the weight of the evidence; 5) defendant has been denied his Fourteenth Amendment due process [*2]rights because the conviction was based on legally insufficient evidence to sustain the conviction beyond a reasonable doubt; and 6) defendant was denied a fair trial as a result of the Court's erroneous admission of the testimony of two unavailable witnesses by transcript of their testimony from a prior trial.

In arriving at the instant decision, the Court has received and considered the defendant's motion, together with exhibits and the People's Affidavit in Opposition.

Defendant was convicted at a prior trial on April 21, 2003, following a jury trial before Justice John Copertino, of Robbery in the First Degree. On June 5, 2003, defendant was sentenced by Justice Copertino to an indeterminate prison term of 20 years to life, as a persistent violent felony offender. This conviction was reversed on appeal and a new trial was ordered because defendant's written and signed consent was not obtained prior to replacing a regular juror with an alternate juror after deliberations had begun, contrary to CPL § 270.35(1.) People v Whitley, 2005 NY Slip Op 9340, 806 NYS2d 222 (2nd Dept. 2005.)

Prior to the instant re-trial this Court conducted two hearings. The first of these hearings was conducted regarding the People's request to be permitted to introduce at the re-trial the trial transcripts of two witnesses who testified at the first trial, but who were unavailable for the second trial. The second hearing was conducted to address the defendant's request to dismiss the indictment because the People destroyed several pieces of physical evidence following the first trial.

The Court ruled, in a written decision dated April 24, 2006, that the People would be permitted pursuant to CPL § 670.10 to introduce by transcript the testimony from the first trial of the two unavailable witnesses at the retrial.

The Court also ruled, in a bench decision, that the People's destruction of trial evidence did not warrant the drastic remedy of dismissal. However, the Court ruled that, as a result of the destruction of evidence, the charge of Robbery in the First Degree would be reduced to Robbery in the Second Degree. The Court also ruled that an adverse inference charge would be delivered to the jury regarding the destroyed evidence. Further, the Court ruled that the People would be permitted to introduce photographs of the destroyed evidence.

Defense counsel effectively cross examined Troy Trent at length at the trial. The jury was, therefore, given ample information from which to assess his credibility. "[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v Gaimari, 176 NY 84, 94 [1903]). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88, 353 NYS2d 500 [2nd Dept, 1974].)" While Mr. Trent's testimony may have included certain inconsistencies, the Court will defer to the jury as to his credibility and the weight to be accorded his testimony. In any event, the Court finds that his testimony was not incredible as a matter of law.

The Court delivered to the jury, in its final charge to the jury, the following charge with respect to the testimony of Troy Trent:

"Under our law, Troy Trent is an accomplice because there is evidence that he participated in and was convicted of, a crime based upon conduct involved in the allegations here against the defendant. [*3]

Our law is especially concerned about the testimony of an accomplice who implicates another in the commission of a crime, particularly when the accomplice has received, expects or hopes for a benefit in return for his testimony.

Therefore, our law provides that a defendant may not be convicted of any crime upon the testimony of an accomplice unless it is supported by corroborative evidence tending to connect the defendant with the commission of that crime.

In other words, even if you find the testimony of Troy Trent to be believable, you may not convict the defendant solely upon that testimony unless you also find that it was corroborated by other evidence tending to connect the defendant with the commission of the crime.

The corroborative evidence need not, by itself, prove that the defendant is guilty. What the law requires is that there be evidence, apart from the testimony of the accomplice, that tends to connect the defendant with the commission of the crime charged in such a way as may reasonably satisfy you that the accomplice is telling the truth about the defendant's participation in that crime."

The jury was, therefore, clearly appraised of the need to find corroborative evidence tending to connect the defendant with the commission of the robbery, in addition to the testimony of Troy Trent, in order to convict the defendant. "The corroborative evidence need not establish all the elements of the offense, but rather, it must tend to connect the defendant to the crime charged. Further, seemingly insignificant matters may harmonize with the accomplice narrative so as to provide the necessary corroboration ... [and] so long as the statutory minimum is met, it is for the jury to decide whether the corroboration satisfies them that the accomplice is telling the truth'." People v Robinson, 297 AD2d 296, 297, 746 NYS2d 31 (2nd Dept, 2002) quoting People v Steinberg, 79 NY2d 673, 683 (1992.) Although the defendant continues to take exception to the Court's rulings allowing the People to introduce 1) the testimony of the unavailable witnesses; and 2) photographs of the destroyed evidence, the Court finds that either or both of these categories of admissible evidence provided ample evidence from which the jury could have found the necessary corroboration of Mr. Trent's testimony. Accordingly, defendant's application to vacate judgment based upon the claim that Troy Trent's testimony was uncorroborated, is denied.

The Court, after hearing testimony and legal argument and in consideration of all appropriate factors, imposed significant sanctions against the People for their destruction of the evidence. The Court delivered to the jury, in its final charge to the jury, the following adverse inference charge with respect to the destroyed evidence:

"You have heard in this case about certain evidence, which no longer exists. Specifically, the evidence which I am referring to is, a pellet gun, videotape, sneakers, and other clothing.

In this regard I charge you that the People had a duty to preserve this evidence and to make it available to the defendant for use at trial.

I further instruct you that, as a result of the People's failure to preserve these items of evidence, you may, but are not required to, infer that these items of evidence so destroyed were unfavorable to the People's case." [*4]

In addition, the Court reduced the charge from Robbery in the First Degree under PL § 160.15(4) to Robbery in the Second Degree under § 160.10(2)(b). This remedy was warranted because in the Court's view the destruction of the pellet gun prevented the defendant from asserting, if he chose to do so, the affirmative defense which would ordinarily be available to a defendant charged under a "displayed what appeared to be a firearm" theory of robbery under PL § 160.15(4.)

These significant sanctions imposed for the destruction of the evidence ensured that defendant was not denied a fair trial. The Court, in arriving at this remedy following the hearing, made clear that principles outlined in People v Kelly, 62 NY2d 516 (1984) would be applied. The Court in Kelly reversed a trial court's decision to dismiss criminal charges based upon the destruction of evidence. The Court ruled, in pertinent part, as follows: "In fashioning an "appropriate" response to the prosecution's wrongful failure to preserve evidence (see CPL 240.70, subd 1), the degree of prosecutorial fault surely may be considered, but the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society. . . .Although the choice of "appropriate" action is committed to the sound discretion of the trial court, as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence. Since such measures were clearly available here, the court abused its discretion in dismissing the charges." Kelly, id at 520-521.

Here, the Court properly balanced the degree of prosecutorial fault against the potential for prejudice to the defendant and imposed significant sanctions against the People. The defendant was not denied a fair trial as a result of this ruling.

The Court of Appeals has made clear that a trial court does not have authority to set aside a verdict on the grounds that the verdict was against the weight of the evidence. People v Carter, 63 NY2d 530 (1984.) The Court in Carter held that "the power granted a Trial Judge by CPL 330.30 (1) to set aside a verdict when reversal as a matter of law by an appellate court would be required is, as concerns proof of guilt, therefore, normally limited to a determination that the trial

evidence was not legally sufficient to establish the defendant's guilt of an offense of which he was convicted." Carter, id at pg. 536.

Further, CPL § 70.10(1) defines "legally sufficient evidence" as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent."

The Court finds there was ample evidence, believed by the jury, to establish every element of the crimes charged in the instant indictment and of the defendant's commission thereof. Accordingly, defendant's applications to set aside the verdict as being 1) against the weight of the evidence (as claimed in Point IV) and 2) based upon legally insufficient evidence to sustain the charges (as claimed in Point V), are both denied.

Regarding the claim that defendant was denied a fair trial as a result of the Court's decision to permit the People to introduce the testimony of two unavailable witnesses by transcript of their testimony from a prior trial, the defendant now specifically claims that this was [*5]error since the People failed to establish, at the hearing, due diligence in obtaining the live presence of the two witnesses. The Court disagrees. Much of the Court's post-hearing six page written decision of April 24, 2006 was addressed squarely to the issue of the People's diligence in obtaining the presence of the two witnesses. The Court held, in part:

"CPL § 670.10 provides the statutory framework for the use of testimony from a prior proceeding at a criminal trial. The requirement, in CPL § 670.10, of due diligence on the part of the People prior to the receipt of the transcript of an unavailable witness was explored by the Court of Appeals in People v Diaz, 97 NY2d 109 (2001.)

Defendant correctly points out that the Court in Diaz found that the People had not established due diligence in bringing an out of country witness to court, however, there are significant factual differences between Diaz and the instant case."

The Court recounted in some detail the efforts put forth by the People to establish their diligence in locating and procuring the presence of the witnesses. The testimony was properly permitted by transcript only after application of the requirement of the establishment by the People of due diligence.

Accordingly, for these reasons stated herein, defendant's application to set aside the verdict is denied.

________________________________

J.C.C.



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