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The PEOPLE of the State of New York, Respondent, v. Nicholas J. CHAPPELL, Appellant.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered June 7, 2017, upon a verdict convicting defendant of the crimes of murder in the second degree, attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree.
Defendant was charged with murder in the second degree, attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree, which all stemmed from an incident on August 31, 2016 when he fatally shot victim A and wounded victim B. Following a jury trial, defendant was convicted as charged and was sentenced to consecutive prison terms of 25 years to life for his conviction of murder in the second degree, 20 years for his conviction of attempted murder in the second degree, to be followed by five years of postrelease supervision, and five years for his conviction of criminal use of a firearm in the first degree. He was also sentenced to 20 years for his conviction of assault in the first degree, to be followed by five years of postrelease supervision, which was to run concurrently to the sentence for his attempted murder conviction. Defendant appeals. We affirm.
In our prior decision, we determined that County Court properly denied defendant's motion to dismiss the indictment and that the verdict was not against the weight of the evidence, but remitted the matter to County Court for a reconstruction hearing to ascertain whether defendant had an opportunity to review the annotated verdict sheet (187 A.D.3d 1319, 134 N.Y.S.3d 93 ). The reconstruction hearing has since been completed, and County Court determined that the proof at the hearing demonstrated that “the copy of the verdict sheet was provided to counsel for the express purpose of insuring that counsel had no objections to the verdict sheet being given to the jury.” Contrary to defendant's assertion, we discern no error with the manner in which County Court conducted the reconstruction hearing as it was not a hearing to determine defendant's guilt, but rather one to “reconstruct and settle the record” (People v. Alomar, 93 N.Y.2d 239, 247, 689 N.Y.S.2d 680, 711 N.E.2d 958 ; see generally People v. Bethune, 29 N.Y.3d 539, 541–542, 59 N.Y.S.3d 301, 81 N.E.3d 835 ). Moreover, “the record of the reconstruction hearing supports the court's determination” (People v. Russo, 4 A.D.3d 777, 778, 771 N.Y.S.2d 768 , lv denied 2 N.Y.3d 806, 781 N.Y.S.2d 305, 814 N.E.2d 477 ; see People v. Pinkney, 300 A.D.2d 79, 79, 750 N.Y.S.2d 749 , lv denied 99 N.Y.2d 631, 760 N.Y.S.2d 113, 790 N.E.2d 287 ; see also People v. Knight, 280 A.D.2d 937, 940, 721 N.Y.S.2d 166 , lv denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121 ). Thus, given that he did not lodge an objection to the annotations, defendant's “consent to the submission of an annotated verdict sheet may be implied” (People v. Johnson, 96 A.D.3d 1586, 1587, 946 N.Y.S.2d 769 , lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 ; see People v. Bjork, 105 A.D.3d 1258, 1264, 963 N.Y.S.2d 472 , lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 , cert denied 571 U.S. 1213, 134 S.Ct. 1306, 188 L.Ed.2d 328 ; People v. Knight, 280 A.D.2d at 940, 721 N.Y.S.2d 166). As such, we reject defendant's contention that County Court committed reversible error by utilizing an annotated verdict sheet.
We now turn to the remaining issues that were not decided in this Court's prior decision. To that end, defendant alleges multiple Molineux violations, the first of which is that County Court erroneously admitted the handwritten note he possessed that read “kill a man” because the note was not subject to a Molineux analysis, despite it constituting prior criminal or immoral conduct.1 However, as a “Molineux analysis is limited to the introduction of a prior uncharged crime or a prior bad act” (People v. Brewer, 28 N.Y.3d 271, 276, 44 N.Y.S.3d 339, 66 N.E.3d 1057 ; see People v. Davis, 177 A.D.3d 1323, 1323–1324, 114 N.Y.S.3d 538 , lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 33, 148 N.E.3d 497 ), the note falls outside the scope of Molineux. Specifically, the note's message, “kill a man,” does not constitute evidence of an uncharged crime or prior bad act but rather a “hostile thought[ ]” (People v. Cortez, 85 A.D.3d 409, 411, 923 N.Y.S.2d 544 , affd 22 N.Y.3d 1061, 981 N.Y.S.2d 651, 4 N.E.3d 952 , cert denied 574 U.S. 858, 135 S.Ct. 146, 190 L.Ed.2d 108 ). Defendant's related argument, that he was denied a fair trial by County Court's failure to offer a limiting instruction forbidding the jury to consider the note as evidence of criminal propensity, is “unpreserved for our review because his attorney did not request a limiting instruction and failed to object to the court's failure to provide one” (People v. Burrell, 120 A.D.3d 911, 912, 990 N.Y.S.2d 427  [internal quotation marks and citation omitted]; see People v. Shortell, 155 A.D.3d 1442, 1445, 66 N.Y.S.3d 69 , lv denied 31 N.Y.3d 1087, 79 N.Y.S.3d 109, 103 N.E.3d 1256 ). Defendant also contends that County Court erred in allowing testimony regarding other alleged prior bad acts of defendant – specifically testimony by victim B that items went missing from his room when he lived with defendant. To the extent this argument is preserved, this testimony falls outside of the scope of Molineux as “mere speculation that a jury may discern something sinister about a defendant's behavior does not render such behavior an uncharged crime” (People v. Enoch, 221 A.D.2d 253, 254, 634 N.Y.S.2d 65 , lv denied 88 N.Y.2d 965, 647 N.Y.S.2d 719, 670 N.E.2d 1351 ).
We are similarly unpersuaded by defendant's contention that he received ineffective assistance of counsel based upon defense counsel's failure to request a limiting instruction as to the handwritten note and his failure to object to the testimony regarding the items that went missing from victim B's room. As to defense counsel's failure to request a limiting instruction, because the handwritten note did not constitute a prior bad act, requesting a limiting instruction would have had little or no chance of success and does not constitute ineffective assistance of counsel (see People v. Leonard, 177 A.D.3d 1158, 1163, 113 N.Y.S.3d 402 , lv denied 34 N.Y.3d 1160, 120 N.Y.S.3d 229, 142 N.E.3d 1131 ). Similarly, as we have found that the testimony regarding the items that were missing from victim B's room does not constitute impermissible Molineux evidence, an objection to the testimony would have had little or no chance of success and does not constitute ineffective assistance of counsel (see id.). Given that the record demonstrates that defense counsel presented a reasonable trial strategy, including a justification defense, made appropriate opening and closing statements and effectively cross-examined witnesses, defendant was provided with meaningful representation (see People v. McCauley, 162 A.D.3d 1307, 1310–1311, 79 N.Y.S.3d 743 , lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 ).
Defendant also argues that the sentence imposed by County Court is harsh and excessive because, among other reasons, the murder of victim A was not “especially heinous” as defendant did not torture or cause prolonged suffering to victim A and because defendant has no prior criminal history. Although defendant received the maximum sentence for his conviction of murder in the second degree, the court considered appropriate factors, including that defendant had no prior criminal history (see People v. Coley, 129 A.D.3d 1327, 1330, 13 N.Y.S.3d 592 , lv denied 26 N.Y.3d 927, 17 N.Y.S.3d 90, 38 N.E.3d 836 ). Given the violent nature of defendant's crimes and that he has shown no remorse, we find no abuse of discretion or extraordinary circumstances warranting modification of the sentence (see People v. Weaver, 167 A.D.3d 1238, 1245, 90 N.Y.S.3d 359 , lv denied 33 N.Y.3d 955, 100 N.Y.S.3d 187, 123 N.E.3d 846 ; People v. Cloonan, 166 A.D.3d 1063, 1065–1066, 87 N.Y.S.3d 707 , lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 ).
ORDERED that the judgment is affirmed.
1. Defendant similarly argues that the note is also subject to analysis under Sandoval. As the note does not constitute “evidence of prior specific criminal, vicious or immoral conduct,” the note falls outside the scope of Sandoval (People v. Pietoso, 168 A.D.3d 1276, 1279, 92 N.Y.S.3d 455  [brackets omitted], lv denied 33 N.Y.3d 1034, 102 N.Y.S.3d 526, 126 N.E.3d 176 , quoting People v. Sandoval, 34 N.Y.2d 371, 376, 357 N.Y.S.2d 849, 314 N.E.2d 413 ).
Egan Jr., J.P., Aarons and Colangelo, JJ., concur.
Response sent, thank you
Docket No: 109583
Decided: October 07, 2021
Court: Supreme Court, Appellate Division, Third Department, New York.
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