PEOPLE v. FUENTES (2008)

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of murder in the second degree (Penal Law § 125.25 [1], [3] ) and one count of attempted murder in the second degree (§§ 110.00, 125.25[1] ).   The conviction arises out of defendant's involvement in the burglary of the apartment occupied by the murder victim (decedent) and several other individuals.   During the commission of the burglary and robbery, defendant shot and killed decedent, shot another occupant of the apartment in the head and struck a third occupant of the apartment in the head with a gun.

Defendant contends that County Court erred in allowing the People to present identification testimony from the victim who was shot in the head.   When that victim initially was shown photo arrays, he did not make any identification because he stated at that time that all three of the robbers wore masks.   Shortly before trial, however, the People notified defense counsel that, despite previous statements to the contrary, the victim in question had informed them that the shooter had not been wearing a mask and that the victim was able to identify defendant as the shooter.   Defendant moved to suppress the identification or, alternatively, he sought a second Wade hearing with respect to that victim's identification.   Even assuming, arguendo, that the court erred in refusing to conduct a second Wade hearing, we conclude that there is no reasonable possibility that such error contributed to the verdict, and thus the error is “harmless beyond a reasonable doubt” (People v. Oliver, 34 N.Y.2d 859, 860, 359 N.Y.S.2d 112, 316 N.E.2d 578;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant further contends that all of the identifications of him, as well as his statements to the police, should have been suppressed because they were the result of a warrantless arrest inside his home and that the court erred in failing to conduct a Payton hearing.   That contention is not preserved for our review inasmuch as defendant failed to raise it either in his motion papers or before the suppression court (see People v. Adams, 163 A.D.2d 881, 883, 558 N.Y.S.2d 408, lv. denied 77 N.Y.2d 875, 568 N.Y.S.2d 918, 571 N.E.2d 88;  see also People v. Suggs, 268 A.D.2d 305, 306, 700 N.Y.S.2d 713, lv. denied 94 N.Y.2d 925, 708 N.Y.S.2d 365, 729 N.E.2d 1164).   Defendant also failed to preserve for our review his contention that his statements should be suppressed based on an unnecessary delay in his arraignment (see People v. Hayward, 48 A.D.3d 209, 851 N.Y.S.2d 153).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

To the extent that defendant's pro se supplemental brief may be read as challenging the identification procedures themselves, we conclude that the photo arrays and the identification procedures involving those arrays were not unduly suggestive (see generally People v. Chipp, 75 N.Y.2d 327, 335-336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). Contrary to the final contention of defendant concerning the suppression of his statements, “[t]he record of the suppression hearing supports the court's determination that defendant's statements ․ ‘were admissible inasmuch as they were spontaneous and not the product of police interrogation or its functional equivalent’ ” (People v. Davis, 27 A.D.3d 1138, 1139, 813 N.Y.S.2d 587, lv. denied 6 N.Y.3d 847, 816 N.Y.S.2d 753, 849 N.E.2d 976, quoting People v. Hinds, 13 A.D.3d 554, 554, 787 N.Y.S.2d 99, lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 732, 831 N.E.2d 977).

Contrary to defendant's further contention, we conclude that the jury, upon hearing the court's charge on identification, credibility and corroboration, could “ ‘gather from its language the correct rules which should be applied in arriving at [a] decision’ ” (People v. Ladd, 89 N.Y.2d 893, 895, 653 N.Y.S.2d 259, 675 N.E.2d 1211, quoting People v. Russell, 266 N.Y. 147, 153, 194 N.E. 65).   We agree with defendant that the court, in marshaling the evidence, may have exceeded the extent necessary to “explain the application of the law to the facts [of the case]” (CPL 300.10[2] ), but we nevertheless conclude that reversal on that ground is not required.   The marshaling of the evidence did not create “an imbalance result[ing] in prejudice to defendant” (People v. Owens, 69 N.Y.2d 585, 591, 516 N.Y.S.2d 619, 509 N.E.2d 314;  see generally People v. Culhane, 45 N.Y.2d 757, 758, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. denied 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706, rearg. dismissed 68 N.Y.2d 910, 508 N.Y.S.2d 1030, 501 N.E.2d 603).   Although defendant failed to preserve for our review his contention that the court erred in instructing the jury that defendant's wife was an interested witness as a matter of law (see People v. Adams, 278 A.D.2d 920, 921, 719 N.Y.S.2d 428, lv. denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;  see also People v. Dees, 45 A.D.3d 602, 603, 845 N.Y.S.2d 115, lv. denied 9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205), we agree with him that the court erred in giving that instruction (see People v. Machicote, 251 A.D.2d 684, 676 N.Y.S.2d 472;  People v. Jackson, 80 A.D.2d 904, 437 N.Y.S.2d 20).   We conclude, however, that the error is harmless (see e.g. People v. Harvey, 111 A.D.2d 185, 488 N.Y.S.2d 814, lv. denied 66 N.Y.2d 763, 497 N.Y.S.2d 1037, 488 N.E.2d 123;  see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant failed to preserve for our review his contentions that the indictment was defective because it failed to comply with CPL 200.50(7) (see People v. Morris, 217 A.D.2d 941, 631 N.Y.S.2d 261, lv. denied 87 N.Y.2d 849, 638 N.Y.S.2d 607, 661 N.E.2d 1389);  because it is duplicitous (see People v. Spagnualo, 5 A.D.3d 995, 997, 774 N.Y.S.2d 223, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478;  People v. Parker, 2 A.D.3d 1282, 768 N.Y.S.2d 903, lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 469, 810 N.E.2d 922);  and because it was constructively amended (see People v. Hernandez, 273 A.D.2d 176, 710 N.Y.S.2d 247, lv. denied 95 N.Y.2d 890, 715 N.Y.S.2d 382, 738 N.E.2d 786, 95 N.Y.2d 935, 721 N.Y.S.2d 611, 744 N.E.2d 147;  People v. Reed, 242 A.D.2d 478, 662 N.Y.S.2d 473, lv. denied 91 N.Y.2d 836, 667 N.Y.S.2d 690, 690 N.E.2d 499).   Defendant likewise failed to preserve for our review his contention that he was denied his right to confront witnesses (see People v. Green, 43 A.D.3d 1279, 1280, 843 N.Y.S.2d 883, lv. denied 9 N.Y.3d 1034, 852 N.Y.S.2d 19, 881 N.E.2d 1206;  People v. Bradley, 15 A.D.3d 840, 841, 788 N.Y.S.2d 767, lv. denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324), as well as his contention that he was denied his right to a fair trial based on prosecutorial misconduct on summation (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800;  People v. Melendez, 11 A.D.3d 983, 984, 782 N.Y.S.2d 893, lv. denied 4 N.Y.3d 888, 798 N.Y.S.2d 734, 831 N.E.2d 979).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Although defendant also failed to preserve for our review his contention that the indictment was not timely filed, that contention may be raised even in the absence of preservation inasmuch as the filing of the indictment could impact the court's subject matter jurisdiction (see CPL 1.20[24];  People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336;  People v. Doe, 271 A.D.2d 29, 31, 710 N.Y.S.2d 420, lv. denied 95 N.Y.2d 934, 721 N.Y.S.2d 610, 744 N.E.2d 146).   Defendant's contention lacks merit, however, because the record establishes that the indictment was timely filed.

We are unable to review the further contention of defendant that he was denied effective assistance of counsel to the extent that it is based on matters outside the record on appeal.   The proper procedural vehicle for raising that contention is by way of a motion pursuant to CPL 440.10 (see People v. Craven, 48 A.D.3d 1183, 851 N.Y.S.2d 318;  see generally People v. Johnson, 24 A.D.3d 1257, 808 N.Y.S.2d 846, lv. denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285).   To the extent that the contention is based on defense counsel's failure to preserve for our review any challenges to the prosecutor's summation, we conclude that such failure did not deprive defendant of meaningful representation (see e.g. People v. Pryor, 48 A.D.3d 1217, 1218-1219, 851 N.Y.S.2d 801;  People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800;  see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Defendant contends that the court erred in imposing consecutive sentences.   Although defendant failed to preserve that contention for our review, we conclude that the consecutive sentences imposed are illegal and thus that preservation is not required (see People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563).   To the extent that we required preservation in People v. Price, 35 A.D.3d 1230, 1231, 825 N.Y.S.2d 868, lv. denied 8 N.Y.3d 919, 926, 834 N.Y.S.2d 510, 516, 866 N.E.2d 456, 462, People v. Rice, 27 A.D.3d 1158, 810 N.Y.S.2d 723 and People v. Gaines, 296 A.D.2d 862, 863, 744 N.Y.S.2d 748, lv. denied 99 N.Y.2d 535, 752 N.Y.S.2d 595, 782 N.E.2d 573, those cases should not be followed.

 As a general rule, consecutive sentences are permissible if “either the elements of the crimes do not overlap or if the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct” (People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722;  see People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   The People correctly concede that the sentence imposed on count 14 of the indictment must run concurrently with the sentences imposed on the other counts of the indictment.   We further conclude that the sentences imposed on counts 1 and 2 of the indictment must run concurrently with the sentences imposed on counts 4, 7, 9, 11 and 12.   Defendant was convicted of robbery in the first degree, robbery in the second degree and burglary in the first degree under counts 4, 9 and 12, respectively, based in part on the acts causing the same physical injuries to decedent and to the victim who was shot in the head that form the basis of defendant's conviction of murder in the second degree and attempted murder in the second degree under counts 1 and 2, respectively, relating to those two men.   The sentences imposed on counts 1 and 2 of the indictment therefore must run concurrently with the sentences imposed on counts 4, 9 and 12 (see generally Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   Inasmuch as defendant was convicted of an additional robbery in the first degree and an additional burglary in the first degree under counts 7 and 11, respectively, and the sentences imposed on counts 4, 9 and 12 must run concurrently with the sentences imposed on counts 7 and 11, the sentences imposed on counts 1 and 2 must run concurrently with the sentences imposed on counts 7 and 11 as well (see id.).   We therefore modify the judgment accordingly.   Finally, we conclude that the sentence, as modified, is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the sentences imposed on counts 1 and 2 of the indictment shall run concurrently with the sentences imposed on counts 4, 7, 9, 11 and 12 of the indictment and that the sentence imposed on count 14 of the indictment shall run concurrently with the sentences imposed on the other counts of the indictment and as modified the judgment is affirmed.

MEMORANDUM: