PITTMAN, MARIO, PEOPLE v ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    826
    KA 11-02124
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MARIO PITTMAN, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Erie County (Richard
    C. Kloch, Sr., A.J.), rendered January 7, 2011. The judgment
    convicted defendant, upon a jury verdict, of attempted murder in the
    first degree, attempted murder in the second degree, criminal
    possession of a weapon in the second 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, attempted murder in the first
    degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]) and criminal
    possession of a weapon in the second degree (§ 265.03 [former (2)]).
    We previously reversed the judgment convicting defendant of those
    crimes and granted a new trial (People v Pittman, 49 AD3d 1166), and
    defendant now appeals from the judgment following the retrial.
    We reject defendant’s contention that Supreme Court erred in
    failing sua sponte to order a further competency hearing immediately
    before trial (see generally People v Tortorici, 92 NY2d 757, 765-766,
    cert denied 
    528 US 834
    ). After the judgment was reversed and before
    the new trial was conducted, defendant was found to be an
    incapacitated person within the meaning of CPL article 730, but he was
    later found to be competent and the matter was scheduled for trial.
    Shortly before trial, based in part upon defendant’s history of
    decompensating after he voluntarily ceased taking his antipsychotic
    medication when he was placed in jail, the court directed a new
    evaluation to determine defendant’s capacity to assist in his defense.
    Of the two psychiatrists who evaluated defendant, one found that he
    was not an incapacitated person but the other was unable to render a
    firm opinion due to defendant’s refusal to cooperate with the
    -2-                           826
    KA 11-02124
    evaluation process. At a court appearance shortly before the
    scheduled trial date, although both the prosecutor and defense counsel
    agreed that it “would be prudent to ask . . . for a hearing” because
    the psychiatrists did not agree that defendant was not an
    incapacitated person, defendant informed the court that he was
    competent and agreed to cooperate with an evaluation by the second
    psychiatrist. After that interview, the second psychiatrist also
    found that defendant was not incapacitated, and the court concluded
    that a hearing was not necessary due to the agreement among the
    psychiatrists.
    “[I]t is perfectly well settled that a trial court is entitled to
    give weight to the findings of competency derived from the ordered
    examinations” (People v Ferrer, 16 AD3d 913, 914, lv denied 5 NY3d
    788, citing People v Morgan, 87 NY2d 878, 880). Inasmuch as the court
    determined that no hearing was necessary based upon the opinions of
    both psychiatrists that defendant was not an incapacitated person, and
    neither party requested a hearing at that time, there was no need for
    a hearing (see CPL 730.30 [2]), and the court properly directed that
    “the criminal action against the defendant . . . proceed” (id.).
    Contrary to defendant’s further contention, the court did not err
    in denying his challenge for cause to two prospective jurors.
    Although those prospective jurors may have initially expressed “a
    state of mind that [was] likely to preclude [them] from rendering an
    impartial verdict based upon the evidence adduced at the trial” (CPL
    270.20 [1] [b]), they ultimately both gave an “unequivocal assurance
    that they [could] set aside any bias and render an impartial verdict
    based on the evidence” (People v Johnson, 94 NY2d 600, 614; see People
    v Brandi E., 105 AD3d 1341, 1343; People v Gladding, 60 AD3d 1401,
    1402, lv denied 12 NY3d 925). Defendant failed to preserve for our
    review his contention that the court erred in allowing a sworn juror
    to remain on the jury, inasmuch as defendant did not object to the
    court’s inquiry of that juror or seek to discharge the juror (see
    People v Dennis, 91 AD3d 1277, 1279, lv denied 19 NY3d 995; People v
    Rufus, 56 AD3d 1175, 1176, lv denied 11 NY3d 930). In any event, the
    court properly concluded that the juror was not “grossly unqualified
    to serve in the case” (CPL 270.35 [1]; see People v Wolff, 103 AD3d
    1264, 1266, lv denied 21 NY3d 948; People v Telehany, 302 AD2d 927,
    928).
    Next, as defendant correctly concedes, he failed to preserve for
    our review his contention that the conviction is not supported by
    legally sufficient evidence, because his motion for a trial order of
    dismissal was not specifically directed at the issues raised on appeal
    (see People v Gray, 86 NY2d 10, 19). In any event, we conclude that
    the evidence is legally sufficient to support the conviction with
    respect to all of the charges (see generally People v Bleakley, 69
    NY2d 490, 495). 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 Bleakley, 69 NY2d at 495).
    Contrary to defendant’s further contention, the court did not err
    -3-                          826
    KA 11-02124
    in admitting in evidence the testimony of a witness that defendant
    fired a weapon at the witness at the start of the incident from which
    these charges arose. Defendant objected to the witness’ testimony on
    the ground that it was not relevant to the charges remaining in the
    indictment because he was acquitted in the first trial of attempting
    to murder that witness, and that any probative value of the evidence
    was outweighed by its prejudicial effect. We reject that contention.
    The Court of Appeals has “reaffirmed the well-established rules that
    evidence is relevant if it has any tendency in reason to prove any
    material fact and that all relevant evidence is admissible at trial
    unless admission violates some exclusionary rule” (People v Alvino, 71
    NY2d 233, 241 [internal quotation marks omitted]). Thus, “where
    evidence of a prior uncharged crime contains more probative value than
    risk of prejudice to the defendant, the evidence is admissible”
    (People v Chase, 85 NY2d 493, 502). Here, the court properly
    determined that the evidence was highly probative on the issues of
    defendant’s possession of a loaded weapon and his intent to use it
    unlawfully against another, i.e., elements of crimes charged in the
    indictment at the retrial, and that its probative value outweighed its
    potential for prejudice (see Alvino, 71 NY2d at 241; People v
    Stubinger, 87 AD3d 1316, 1316-1317, lv denied 18 NY3d 862; see
    generally People v Delarosa, 84 AD3d 832, 833-834, lv denied 17 NY3d
    815).
    We reject the further contention of defendant that his statutory
    right to be present during a material stage of the trial was violated
    (see generally CPL 310.30). Contrary to defendant’s contention,
    “[t]he absence of a notation in the record indicating that defendant
    was present is not sufficient to demonstrate that he was not present”
    (People v Martin, 26 AD3d 847, 848, affd sub nom. People v Kissoon, 8
    NY3d 129; see People v Foster, 1 NY3d 44, 48). Based upon the record
    before us, we conclude that defendant “failed to come forward with
    substantial evidence to rebut the presumption of regularity that
    attaches to all criminal proceedings” (People v Andrew, 1 NY3d 546,
    547).
    Contrary to defendant’s additional contention, he was not
    deprived of a fair trial by the admission of evidence of prior
    uncharged criminal conduct, which was contained in his statement to
    the police. Although evidence of a defendant’s past uncharged
    criminal behavior is not admissible to show defendant’s general
    predisposition to criminal conduct (see People v Molineux, 168 NY 264,
    291-293), the evidence of defendant’s prior criminal conduct was
    properly admitted because it was relevant to a material aspect of the
    People’s direct case (see id. at 293-294). Furthermore, defendant
    cannot claim any surprise with respect to the evidence inasmuch as it
    was included in the People’s CPL 710.30 notice and was introduced at
    the first trial on these charges (cf. People v Matthews, 68 NY2d 118,
    122-123).
    Defendant failed to preserve for our review his additional
    contention that he was deprived of a fair trial by prosecutorial
    misconduct on summation (see People v Smith, 32 AD3d 1291, 1292, lv
    denied 8 NY3d 849) and, in any event, that contention is without
    -4-                          826
    KA 11-02124
    merit. The majority of the prosecutor’s comments on summation to
    which defendant objects on appeal were within the “ ‘broad bounds of
    rhetorical comment permissible in closing argument’ ” (People v
    Williams, 28 AD3d 1059, 1061, affd 8 NY3d 854, quoting People v
    Galloway, 54 NY2d 396, 399), and any comments that were arguably
    improper were not so egregious as to deprive defendant of a fair trial
    (see People v Lopez, 96 AD3d 1621, 1622, lv denied 19 NY3d 998; People
    v Rivera, 281 AD2d 927, 928, lv denied 96 NY2d 906; People v Walker,
    234 AD2d 962, 963, lv denied 89 NY2d 1042). We have considered
    defendant’s remaining contentions regarding alleged prosecutorial
    misconduct and conclude that they are without merit.
    Defendant’s contention that the court failed to apprehend or
    exercise its discretion when sentencing him is not supported by the
    record (see People v McCray, 78 AD3d 1595, 1595; People v Moon, 43
    AD3d 1379, 1380, lv denied 9 NY3d 1036; cf. People v Schafer, 19 AD3d
    1133, 1133). Finally, the sentence is not unduly harsh or severe.
    Entered:   September 27, 2013                  Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-02124

Filed Date: 9/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016