PEOPLE v. KELLAM (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]), three counts of attempted robbery in the first degree (§§ 110.00, 160.15 [1]), and two counts of criminal possession of a weapon in the second degree (§ 265.03 [3]), defendant contends in his main brief that the verdict is against the weight of the evidence. We reject that contention. We note that a different verdict would not have been unreasonable inasmuch as this case rests largely on the jury's credibility findings with respect to the testimony of a witness identifying defendant as the perpetrator (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Nevertheless, 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]), and affording the requisite “great deference to the jury, given its opportunity to view the witness[ ]” (People v. Streeter, 118 A.D.3d 1287, 1288, 987 N.Y.S.2d 775 [4th Dept. 2014], lv denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148 [2014], reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014]), we conclude that the jury did not fail 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's contention in his main brief that he was deprived of a fair trial by prosecutorial misconduct on summation is, for the most part, unpreserved for our review inasmuch as defendant failed to object to all but two of the statements he now challenges on appeal (see People v. Watts, 218 A.D.3d 1171, 1174, 195 N.Y.S.3d 330 [4th Dept. 2023], lv denied 40 N.Y.3d 1013, 199 N.Y.S.3d 17, 222 N.E.3d 533 [2023]; People v. Graham, 171 A.D.3d 1566, 1570, 99 N.Y.S.3d 562 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 689, 130 N.E.3d 1299 [2019]). With respect to his preserved challenges, County Court gave prompt curative instructions in response to defense counsel's objections. Inasmuch as defendant did not object further or move for a mistrial, “the curative instructions must be deemed to have corrected the error to ․ defendant's satisfaction” (People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994]).

Defendant contends in his main brief that the court failed to comply with the procedure for disclosure of jury notes to counsel set forth in (People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991]). We reject defendant's contention with respect to one of the seven notes at issue, i.e., jury note No. 12. “[T]he O'Rama procedure is not implicated when the jury's request is ministerial in nature and therefore requires only a ministerial response” (People v. Nealon, 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 [2015]; see People v. Agee, 206 A.D.3d 1723, 1724, 169 N.Y.S.3d 769 [4th Dept. 2022], lv denied 38 N.Y.3d 1148, 174 N.Y.S.3d 26, 194 N.E.3d 733 [2022]) and, here, defendant has not established that jury note No. 12 was a substantive inquiry. Instead, the jury's request “was nothing more than an inquiry of a ministerial nature ․, unrelated to the substance of the verdict ․ As a result, the judge was not required to notify defense counsel nor provide them with an opportunity to respond, as neither defense counsel nor defendant could have provided a meaningful contribution” (People v. Ochoa, 14 N.Y.3d 180, 188, 899 N.Y.S.2d 66, 925 N.E.2d 868 [2010]). Defendant failed to preserve for our review his contention with respect to the other six jury notes at issue. With respect to those notes, we note that where, as here, “counsel has meaningful notice of a substantive jury note that has been read verbatim in open court, the court's failure to discuss the note or its intended response with counsel outside the presence of the jury is not a mode of proceedings error because counsel is not prevented from objecting or from participating meaningfully” (People v. Mack, 27 N.Y.3d 534, 542, 36 N.Y.S.3d 68, 55 N.E.3d 1041 [2016], rearg denied 28 N.Y.3d 944, 38 N.Y.S.3d 513, 60 N.E.3d 407 [2016]), and thus preservation is required. We decline to exercise our power to review defendant's contention with respect to those six jury notes as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant contends in his main brief that he was denied effective assistance of counsel at trial. That contention is based in part on matters outside the record. We conclude that, because “the ‘claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the [mixed] claim in its entirety’ ” (People v. Wilson [appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018]; see People v. Kellam [appeal No. 2], ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2025 WL 1200549 [Apr. 25, 2025] [4th Dept. 2025] [decided herewith]; see also People v. Franklin, 206 A.D.3d 1610, 1611-1612, 168 N.Y.S.3d 620 [4th Dept. 2022], lv denied 38 N.Y.3d 1150, 174 N.Y.S.3d 33, 194 N.E.3d 740 [2022]).

Contrary to defendant's further contention in his main brief, the sentence is not unduly harsh or severe. Finally, we have reviewed the remaining contentions in defendant's main and pro se supplemental briefs and conclude that they do not warrant modification or reversal of the judgment.