PEOPLE v. KIRKEY (2024)

MEMORANDUM AND ORDER

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, two counts of driving while intoxicated as a misdemeanor (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [b] [i]), one count of aggravated vehicular homicide (Penal Law § 125.14 [4]), and two counts of manslaughter in the second degree (§ 125.15 [1]).

Defendant contends that the verdict is against the weight of the evidence with respect to defendant's identity as the driver of the vehicle that crashed into a bridge abutment and ended up submerged in a creek, killing the other two occupants of the vehicle, a male and a female. The evidence at trial established that the vehicle belonged to defendant, and testimony and video surveillance showed him driving the vehicle approximately 10 minutes before the accident occurred (see generally People v. Kenny, 283 A.D.2d 950, 951, 725 N.Y.S.2d 773 [4th Dept. 2001], lv denied 96 N.Y.2d 903, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001]). After the accident, defendant was found on the bank of the creek on the driver's side of the vehicle, and the front driver's side door was open. The female occupant was found still buckled in the front passenger seat, and the body of the male occupant was recovered from the creek the following morning. The front right side of the vehicle struck the bridge abutment, and a reconstruction expert testified that such an impact would have accelerated the occupants of the vehicle toward the direction of that force. The evidence established that, although airbags in the vehicle had deployed, the vehicle's steering wheel was bent forward on the right side. The expert explained that, in light of how the steering wheel was bent, the driver could have sustained injuries to their left side from hitting the steering wheel. The female and male occupants sustained right-side injuries, and defendant sustained injuries to his chest and left side (see People v. Pascuzzi, 173 A.D.3d 1367, 1372-1373, 102 N.Y.S.3d 778 [3d Dept. 2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 624, 134 N.E.3d 623 [2019]; People v. Herrera, 138 A.D.3d 1141, 1142-1143, 30 N.Y.S.3d 290 [2d Dept. 2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016]).

There was also testimony from a witness that the male occupant did not drive and that defendant would not let anyone borrow his vehicle. Additionally, swabbings from the steering wheel and subsequent DNA analysis showed two male contributors, with the major contributor being defendant and the male occupant being excluded as a possible contributor. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to defendant's identity as the driver of the vehicle (see People v. Maricevic, 52 A.D.3d 1043, 1046, 860 N.Y.S.2d 666 [3d Dept. 2008], lv denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Even assuming, arguendo, that a different verdict would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant next contends that he was denied an effective summation when County Court sustained the People's objection and held that it agreed that defense counsel had mischaracterized a witness's testimony. That contention is unpreserved for our review inasmuch as defendant did not object to the court's ruling or comments as depriving him of his right to an effective summation (see People v. Gordon, 181 A.D.3d 1299, 1300, 121 N.Y.S.3d 484 [4th Dept. 2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 36, 149 N.E.3d 874 [2020]). In any event, his contention is without merit inasmuch as defense counsel had mischaracterized the witness's testimony regarding whether the male occupant's facial injuries were consistent with injuries sustained from an airbag (see People v. Bistonath, 216 A.D.2d 478, 479, 628 N.Y.S.2d 738 [2d Dept. 1995], lv denied 86 N.Y.2d 790, 632 N.Y.S.2d 503, 656 N.E.2d 602 [1995]; see generally People v. Smith, 16 N.Y.3d 786, 787-788, 920 N.Y.S.2d 284, 945 N.E.2d 477 [2011]; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 [1976]). In addition, defense counsel was not prevented from making the general argument that an airbag could not be excluded as a possible cause of the male occupant's facial injuries (see People v. Kimmy, 137 A.D.3d 1723, 1723-1724, 29 N.Y.S.3d 715 [4th Dept. 2016], lv denied 27 N.Y.3d 1134, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016]).

Defendant's contention that two instances of prosecutorial misconduct during summation denied him a fair trial is not preserved for our review (see People v. Moorhead, 224 A.D.3d 1225, 1227, 205 N.Y.S.3d 588 [4th Dept. 2024], lv denied 41 N.Y.3d 1003, 213 N.Y.S.3d 250, 236 N.E.3d 1268 [2024]; People v. King, 224 A.D.3d 1313, 1314, 204 N.Y.S.3d 638 [4th Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 299, 237 N.E.3d 1239 [2024]). In any event, we conclude that defendant's contention is without merit inasmuch as the alleged instances of prosecutorial misconduct constituted fair comment on the evidence (see People v. Townsend, 171 A.D.3d 1479, 1481, 99 N.Y.S.3d 156 [4th Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 656, 130 N.E.3d 1266 [2019]). Moreover, even assuming, arguendo, that the prosecutor mischaracterized the testimony, we conclude that the prosecutor's remarks were not so pervasive or egregious as to deny defendant a fair trial (see People v. Williams, 228 A.D.3d 1249, 1249-1250, 212 N.Y.S.3d 878 [4th Dept. 2024]; King, 224 A.D.3d at 1314, 204 N.Y.S.3d 638; People v. Longo, 212 A.D.3d 471, 472, 181 N.Y.S.3d 248 [1st Dept. 2023], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 754, 215 N.E.3d 1195 [2023]).

Defendant further contends that he was denied effective assistance of counsel. Contrary to defendant's contention, a review of the voir dire transcript in totality does not support his claim that defense counsel permitted defendant himself to choose the jury (see People v. Richardson, 143 A.D.3d 1252, 1254-1255, 38 N.Y.S.3d 674 [4th Dept. 2016], lv denied 28 N.Y.3d 1150, 52 N.Y.S.3d 301, 74 N.E.3d 686 [2017]; cf. People v. McKenzie, 142 A.D.3d 1279, 1280, 38 N.Y.S.3d 330 [4th Dept. 2016]) or that defense counsel was not actively participating in the process (cf. People v. Bell, 48 N.Y.2d 933, 934, 425 N.Y.S.2d 57, 401 N.E.2d 180 [1979], rearg denied 49 N.Y.2d 802, 426 N.Y.S.2d 1029, 403 N.E.2d 466 [1980]). We further reject defendant's claim that defense counsel was ineffective in failing to offer a legal basis for seeking the admission of certain allegedly exculpatory statements made by defendant or in failing to object when the court stated that defense counsel had mischaracterized certain testimony during summation. It is well settled that “[t]here can be no denial of effective assistance of trial counsel arising from counsel's failure to ‘make a motion or argument that has little or no chance of success’ ” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005], quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 [2004], rearg denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 [2004]). Defendant's allegedly exculpatory statements were self-serving and constituted inadmissible hearsay (see People v. Moses, 197 A.D.3d 951, 954, 153 N.Y.S.3d 373 [4th Dept. 2021], lv denied 37 N.Y.3d 1097, 156 N.Y.S.3d 796, 178 N.E.3d 443 [2021], reconsideration denied 37 N.Y.3d 1163, 160 N.Y.S.3d 706, 181 N.E.3d 1134 [2022]) and, as noted above, defense counsel had indeed mischaracterized a witness's testimony in summation.

We reject defendant's further claim that defense counsel mishandled the issue of DNA evidence and was ineffective in eliciting certain testimony of a witness on cross-examination. “ ‘[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations’ for [defense] counsel's alleged shortcomings” (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998], quoting People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988]), and defendant failed to meet that burden here (see People v. Francis, 206 A.D.3d 1605, 1606, 167 N.Y.S.3d 868 [4th Dept. 2022], lv denied 38 N.Y.3d 1133, 172 N.Y.S.3d 861, 193 N.E.3d 526 [2022]; People v. Conley, 192 A.D.3d 1616, 1620, 144 N.Y.S.3d 508 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 175 N.E.3d 442 [2021]). In addition, inasmuch as we conclude that there was no prosecutorial misconduct during summation, we further conclude that defense counsel was not ineffective for failing to object to the alleged improprieties (see Townsend, 171 A.D.3d at 1481, 99 N.Y.S.3d 156). We have reviewed the remaining claims of ineffective assistance of counsel, and we conclude that, because “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement [has] been met” (People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).

We reject defendant's contention that the court erred in not making an inquiry into defendant's complaints about defense counsel at the close of the People's proof. Although defendant made complaints about the proof that was introduced or not introduced, defendant did not request new counsel and thus “it cannot be said that the court erred in failing to conduct an inquiry to determine whether good cause was shown to substitute counsel” (People v. Singletary, 63 A.D.3d 1654, 1654, 880 N.Y.S.2d 829 [4th Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009]; see People v. Martinez, 166 A.D.3d 1558, 1558-1559, 88 N.Y.S.3d 732 [4th Dept. 2018]). In any event, “ ‘the court afforded defendant the opportunity to express his objections concerning defense counsel, and the court thereafter reasonably concluded that defendant's objections were without merit’ ” (Martinez, 166 A.D.3d at 1559, 88 N.Y.S.3d 732; see Singletary, 63 A.D.3d at 1654, 880 N.Y.S.2d 829).