THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v DEVON CALLICUT, Also Known as CUT, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
November 29, 2012
956 N.Y.S.2d 607
Peters, P.J.
After a jury trial, defendant was convicted of murder in the first degree, robbery in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree. He was sentenced to life imprisonment without the possibility of рarole for his conviction of murder in the first degree, to run concurrently with two 15-year prison terms for his convictions of attempted robbery in the first degree and criminal possession of a weapon in the second degree. For his conviction of robbery in the first degree, defendant was sentenced to a consecutive prison term of 25 years with five years of postrelease supervision. He now appeals.
Defendant claims that portions of two letters he allegedly
Evidence is not fruit of the poisonous tree simply because it would not have come to light “but for” the illegal police conduсt (see Hudson v Michigan, 547 US 586, 592 [2006]; Segura v United States, 468 US 796, 815 [1984]; Wong Sun v United States, 371 US 471, 487-488 [1963]). “[R]ather, the dispositive inquiry is whether the challenged evidence is come at by the exploitation of that illegality so as to make it the product of that illegality” (People v Richardson, 9 AD3d 783, 789 [2004], lv denied 3 NY3d 680 [2004]; see Wong Sun v United States, 371 US at 488; People v Arnau, 58 NY2d 27, 32 [1982]). Here, police neither directed, encouraged nor enticed defendant to write the letters. Rather, they were unsolicited, spontaneous admissions to his friends made at a time when he was free of any coercive effects that may have induced his earlier statements. Thus, Supreme Court properly determined that exclusion was not warranted (see People v Talamo, 55 AD2d 506, 508 [1977]; compare People v Grimaldi, 52 NY2d 611, 617 [1981]; People v Moss, 179 AD2d 271, 275 [1992], lv dismissed 80 NY2d 932 [1992]).
Defendant next contends that his convictions for murder in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree are not supрorted by legally sufficient evidence and are against the weight of the evidence. Specifically, he claims that the People failed to establish his identity as the shooter or that, in firing the fatal shot, he possessed the requisite intent to cause Bailey‘s death. To convict defendant of the crime of murder in the first degree, the People were required to prove that, “[w]ith [the] intent to cause the death of another person, [defendant] cause[d] the death of such person . . . [while] in the course of committing or attempting to commit and in furtherance of robbery” (
The trial testimony established that on the evening of October 20, 2008, upon defendant‘s suggestion that they “get some free money,” defendant, King Modest and Ricardo Caldwеll left
As for the element of intent, it “may be inferred from a defendant‘s conduct and the surrounding circumstances” (People v Booker, 53 AD3d 697, 703 [2008], lv denied 11 NY3d 853 [2011]; see People v Hatchcock, 96 AD3d 1082, 1084 [2012], lv denied 19 NY3d 997 [2012]), as well as “from the act itself” (People v Bracey, 41 NY2d 296, 301 [1977]). Here, the doctor who performed the autopsy on Bailey explained that the gun was “very close” to Bailey‘s head when the bullet was fired, and was “possibly touching it.” “[E]vidence that a person ‘fired a shot at close range into [another‘s] head [is] sufficient to support the inference that [the person] intended to kill the victim’ ”
Likewise, upon the exercise of our factual review power (see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we reject defendаnt‘s claim that the verdict on these counts is against the weight of the evidence. The fact that Modest and Caldwell were testifying pursuant to cooperation agreements in which they received leniency was fully developed at trial and highlighted to the jury, and did not render their testimony unworthy of belief as a matter of law (see People v Moyer, 75 AD3d 1004, 1006 [2010]; People v Vargas, 60 AD3d 1236, 1238 [2009], lv denied 13 NY3d 750 [2009]; People v Wright, 22 AD3d 873, 875-876 [2005], lv denied 6 NY3d 761 [2005]). While certain witnesses testified that defendant described the shooting as an accident, and there was no DNA or fingerprint evidence linking defendant to the letters in which he admitted to having shot Bailey, this created credibility issues for the jury to resolve. Evaluating the evidence in a neutral light, weighing the probative force of the conflicting testimony and considering the relative strength of the inferences to be drawn therefrom, while giving due deference to the jury‘s credibility determinations (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Bleakley, 69 NY2d at 495), we conclude that the jury gave the evidence the weight it should be accorded.
Defendant‘s challenge to the sufficiency and weight of the evidence supporting his conviction of robbery in the first degree is similarly without merit. Knauth testified that he was walking towards his home on Yates Street in the City of Albany on thе evening of October 20, 2008 when a young black male on a bicycle pointed a gun to the left side of his neck, demanded that he “give [defendant] everything” and then hit him with the butt of the gun. This crime occurred minutes after and within a few blocks of the shooting, and the testimony regarding defendant‘s clothing and appearance on the night of the incident matched Knauth‘s description of his assailant. Evidence was also presented that defendant, Modest and Caldwell separated from each other immediately after the shooting, that Caldwell and Modest reconvened at Caldwell‘s house shortly thereafter and that defendant did not arrive until later. Thus, while Knauth could not positively identify defendant as the robber, we
We next address defendant‘s assertion that Supreme Court erred in denying his Batson objections (see Batson v Kentucky, 476 US 79 [1986]). During the first round of jury selection, the People exercised peremptory challenges to four of the five African-American jurors on the panel and, during the second round, exercised peremptory challenges to one of the two African-American jurors on the panel.2 Defendant, in response, raised Batson objections, claiming that the People‘s use of those peremptories demonstrated a pattern of purposeful discrimination. Supreme Court found that defendant had made a prima facie case,3 thereby shifting the burden to the People to offer a facially nеutral explanation for each challenge (see People v Hecker, 15 NY3d 625, 634 [2010], cert denied sub nom. Black v New York, 563 US 991, 131 S Ct 2117 [2011]; People v Smocum, 99 NY2d 418, 420 [2003]).
The prosecutor explained that juror No. 5 appeared “sloppily dressed,” “aloof” and was not good at following Supreme Court‘s instructions. He stated that he “had zero connection with” juror No. 8, noting that this juror “chuckl[ed]” while he was commenting about certain witnesses, and explained his bеlief that this self-described “efficient” juror would not view the prosecution favorably during this complex case. As for juror No. 19, the prosecutor expressed concern that this juror might sympathize with defendant due to the fact that she worked for a defense attorney, and stated that the juror‘s failure to be forthright in her answer to the court‘s inquiry as to whether any of the prosрective jurors had ever been accused of a crime “g[a]ve[ ] [him] some pause.” Noting juror No. 20‘s statement that he had been falsely accused of a crime, the prosecutor believed that this juror may likewise be unduly sympathetic to
The prosecutor‘s explanations, which need not be persuasive or plausible but only “facially permissible” (People v Smocum, 99 NY2d at 422; see Purkett v Elem, 514 US 765, 768 [1995]; People v Morgan, 24 AD3d 950, 951 [2005], lv denied 6 NY3d 815 [2006]), were race neutral and overcame any inference of discrimination set forth by the defense (see People v Ardrey, 92 AD3d 967, 970 [2012], lv denied 19 NY3d 865 [2012]; People v Simmons, 31 AD3d 1051, 1053 [2006], lv denied 7 NY3d 929 [2006]). Defense counsel‘s responses mostly failed to address the specific reasons given for challenging each juror at issue (see People v Knowles, 79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]; People v Skervin, 13 AD3d 661, 662 [2004], lv denied 5 NY3d 833 [2005]), and defendant cannot now make arguments not advanced before Supreme Court in an effort to demonstrate that those reasons were merely a pretext (see People v Smocum, 99 NY2d at 423; People v Lee, 80 AD3d 877, 879 [2011], lv denied 16 NY3d 833 [2011]). Under these circumstances and deferring to Supreme Court‘s credibility determinations, we discern no basis to disturb the court‘s finding that the People‘s explanations were race neutral and not pretextual (see People v Ardrey, 92 AD3d at 969-970; People v Knowles, 79 AD3d at 21-22; People v Simmons, 31 AD3d at 1053). Contrary to defendant‘s further contention, the court, in making its determination on the issue of discriminatory intent, “was entitled to take into consideration the totality of the facts and circumstances, including its own observations of the jurors and counsel and the additional information gleaned from thе jurors during voir dire” (People v Knowles, 79 AD3d at 23).
Nor did Supreme Court abuse its discretion in denying defendant‘s challenge for cause to prospective juror No. 13. When asked his understanding of the responsibility of a juror, juror No. 13 stated that he felt his role was to render a verdict and provide closure for the victims’ families as well as defendant. The juror‘s response did not indicate any actual bias or otherwise cast serious doubt on his ability to be impartial (see
Similarly unavailing is defendant‘s assertion that Supreme Court erred in permitting the People to introduce evidence of a prior consistent statement made by Modest implicating defendant as the shooter of Bailey. “If upon cross-examination a witness‘[s] testimony is assailed—either directly or inferentially—as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify” (People v McDaniel, 81 NY2d 10, 18 [1993]; see People v McClean, 69 NY2d 426, 428-429 [1987]). On cross-examination, defense counsel extensively questioned Modest regarding the fact that he was testifying pursuant to a plea agreement whereby he was able to еscape prosecution for the crimes of murder in the second degree and robbery in the first degree in exchange for his plea of guilty to the crime of attempted robbery in the second degree and his promise to cooperate with the People in their prosecution of defendant. This line of questioning created the inference that the fаvorable plea deal that Modest accepted provided him with a motive to testify falsely about defendant‘s involvement in the crimes (see People v McClean, 69
Defendant next contends that Supreme Court abused its discretion in permitting the People to provide opinion testimony from a handwriting expert as to whether defendant authored the letters sent from prison. The expert explained to the jury that, after he obtained copies of the letters (the “disputed” writings), defendant was directed to rewrite them five times in his presence (the “known” writings). Based upon his assessment of a number of characteristics found to be consistent between the disputed and known writings of defendant, the expert opined that defendant had authored the letters.
Nor were the Peoрle required to give notice of their intention to introduce a statement that defendant made to police identifying his cell phone number during the process of his arrest on an unrelated charge (see
Defendant also argues that Supreme Court erred in denying his request to charge manslaughter in the first degree as a lesser included offense of murder in the first degree. “[W]here a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, . . . the defendant‘s conviction of the crime alleged in the indictment forecloses a challenge to the court‘s refusal to charge the remote lesser included offenses” (People v Boettcher, 69 NY2d 174, 180 [1987]). Here, thе jury convicted defendant of murder in the first degree even though it was charged with the lesser included offense of murder in the second degree (see generally People v Miller, 6 NY3d 295, 302-303 [2006]). Consequently, defendant is foreclosed from challenging the court‘s failure to charge the more remote lesser included offense of manslaughter in the first degree, even if such a charge was available on the facts (see People v Green, 5 NY3d 538, 545 [2005]; People v Waugh, 52 AD3d 853, 855 [2008], lv denied 11 NY3d 796 [2008]).
Finally, we reject defendant‘s claim that his sentence was harsh and excessive. He committed a heinous, senseless, murder of an unarmed 19 year old and, just minutes later, held a gun to the head of another innocent victim, threatening his life. Although defendant was only 18 years old at the time of the offenses, he nevertheless had managed to amass an extensive criminal history, including previous felony convictions for gun-
Defendant‘s remaining contentions have been fully reviewed and found to be without merit.
Lahtinen, Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.