PEOPLE v. HARKLESS (2025)

Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered September 18, 2018, which, after a jury trial, convicted defendant of assault in the first degree and two counts of criminal possession of a weapon in the second degree, and sentenced him to an aggregate term of 19 years, unanimously affirmed.

Defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, and we decline to review it in the interest of justice (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]).  As an alternative holding, viewing the evidence in the light most favorable to the prosecution (see People v. Kancharla, 23 N.Y.3d 294, 302, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014]), we find that it was legally sufficient to establish defendant's guilt of assault in the first degree and criminal possession of a weapon in the second degree beyond a reasonable doubt.

The trial court providently exercised its discretion in denying defendant's motions to sever his trial from the codefendant.  The codefendant's post-arrest statements were not admitted, nor did the codefendant testify (see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 [1968]).  The core of defendant's defense was that he was not the shooter, and the codefendant's defense was that he had no role in the shooting and drove off because he panicked.  The defenses were not in irreconcilable conflict with each other (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]), and the jury thus was not faced with a forced choice between one defense and another (see People v. Golden, 23 A.D.3d 266, 804 N.Y.S.2d 74 [1st Dept. 2005], lv denied 6 N.Y.3d 813, 812 N.Y.S.2d 452, 845 N.E.2d 1283 [2005]).

Defendant's challenge to the trial court's admission of the testimony about a prior conviction under (People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901]) is unpreserved for appellate review, as defendant failed to raise this specific contention before the trial court (see People v. Delacruz, 207 A.D.3d 652, 653, 171 N.Y.S.3d 575 [2d Dept. 2022], lv denied 39 N.Y.3d 1072, 183 N.Y.S.3d 804, 204 N.E.3d 440 [2023]), and we decline to review it in the interest of justice.  As an alternative holding, we find the testimony was properly admitted to demonstrate motive and identification, not propensity to commit the charged crimes.

Defendant's challenges to the People's summation are largely unpreserved, and we decline to review them in the interest of justice.  As an alternative holding, and with respect to the arguably preserved challenges, we find that the challenged remarks constituted fair comment on the evidence and reasonable inferences to be drawn therefrom;  were responsive to defense arguments;  and that the summation did not deprive defendant of a fair trial (see People v. Frasier, 211 A.D.3d 487, 488, 179 N.Y.S.3d 228 [1st Dept. 2022], lv. denied 40 N.Y.3d 928, 192 N.Y.S.3d 517, 213 N.E.3d 659 [2023];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).

The court properly exercised its discretion when it asked the jury if it had reached a partial verdict.  “The trial court is in the best position to decide whether to make such an inquiry, especially where, as here, jury notes give an indication that such a query might be appropriate, and we have repeatedly upheld the court's authority in this regard” (People v. Cisse, 149 A.D.3d 435, 436, 53 N.Y.S.3d 614 [1st Dept. 2017], affd 32 N.Y.3d 1198, 96 N.Y.S.3d 165, 120 N.E.3d 364 [2019], cert denied, ––– U.S. ––––, 140 S.Ct. 83, 205 L.Ed.2d 77 [2019];  see also People v. Adamson, 127 A.D.3d 566, 566, 7 N.Y.S.3d 131 [1st Dept. 2015], lv denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015]).  The court specifically advised the jury that it did not intend to put pressure on them, “and there is no indication that the jurors felt compelled to reach a verdict against their will” (People v. Hall, 105 A.D.3d 658, 658, 963 N.Y.S.2d 265 [1st Dept. 2013], lv denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013]).