        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

366
KA 11-01944
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JAQUAN CLARK, ALSO KNOWN AS DEVONTE HAMPTON,
DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered December 1, 2009. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree (eight counts) and criminal possession of a weapon in the
second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of eight counts of murder in the second degree
(Penal Law § 125.25 [1], [3]) and two counts of criminal possession of
a weapon in the second degree (§ 265.03 [1] [b]; [3]). The conviction
arose from the murder of four people in late December 2008; one victim
was killed on December 23 on Skuse Street in Rochester, and three
victims were killed on December 26 at a home on Bernice Street in
Rochester. The 17-year-old defendant was arrested on an unrelated
warrant on January 6, 2009 and was charged with the two weapon
possession counts at that time. It is undisputed that the weapon that
defendant possessed on January 6, 2009 was not connected to any of the
murders. We agree with defendant that Supreme Court erred in denying
that part of his omnibus motion seeking severance of the weapon
possession counts from the murder counts because “proof of defendant’s
commission of the [murders] was not admissible to prove defendant’s
guilt of criminal possession of the [weapon] or vice versa. The
incidents were unrelated in time and place and completely dissimilar
in nature” (People v Gadsden, 139 AD2d 925, 926). We nevertheless
conclude that, because the evidence of the murder counts is
overwhelming, there is not a significant probability that defendant
would have been acquitted of any of the murder counts if the evidence
regarding the weapon possession counts had not been before the jury
(see People v Crimmins, 36 NY2d 230, 241-242; cf. Gadsden, 139 AD2d at
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926).

     We reject defendant’s contention that the court erred in refusing
to suppress statements he made to the police during the 26-hour period
of videotaped interrogation. It is axiomatic that the length of the
interrogation period “does not, by itself, render the statement[s]
involuntary” (People v Weeks, 15 AD3d 845, 847, lv denied 4 NY3d 892).
Instead, we must view “ ‘the totality of the circumstances surrounding
the interrogation’ ” (People v Knapp, 124 AD3d 36, 41). The detective
ascertained defendant’s date of birth, that he had completed the 10th
grade and was obtaining his GED, that he could read and write, that he
was not under the influence of alcohol or marijuana, and that he had
never before been read his Miranda rights. The detective “did not
restrict himself to a mere reading of the rights from a card . . .
[but] [i]nstead . . . described the rights in more detail and simpler
language, verifying that defendant understood [them]” (People v
Williams, 62 NY2d 285, 288). We conclude that the court properly
determined that defendant voluntarily waived his Miranda rights (see
People v Huff, 133 AD3d 1223, 1224). We further conclude that his
will was not overborne by coercive police tactics (cf. People v
Guilford, 21 NY3d 206, 212; Knapp, 124 AD3d at 47-48). Contrary to
defendant’s contention, the tactics used by the police, i.e., telling
defendant that they thought he was a “good kid,” stating that he would
feel better when he told the truth, and challenging the
inconsistencies in his statement with the evidence, were not improper
or unusual where, as here, there is no evidence that defendant was of
subnormal intelligence or susceptible to suggestion (cf. Knapp, 124
AD3d at 47-48; see generally People v Johnson, 52 AD3d 1286, 1287, lv
denied 11 NY3d 738). Indeed, defendant never admitted that he
committed the offenses, and he changed his version of events regarding
the murders at the Bernice Street home, admitting that he was present
when the murders were committed by someone else, only when confronted
with fingerprint evidence establishing that he was at the home.
Defendant thereafter admitted that he was present at the Skuse Street
murder when he implicated another person for that murder. He
explained that it was that other person who also had committed the
murders at the Bernice Street home, and not the three people whom he
initially implicated, but whom the police established had alibis for
the time those murders were committed. The record establishes that
defendant was provided with food, water, cigarettes, and bathroom
breaks throughout the period (see Huff, 133 AD3d at 1225; People v
Collins, 106 AD3d 1544, 1545, lv denied 21 NY3d 1072; cf. Guilford, 21
NY3d at 210; People v Anderson, 42 NY2d 35, 40). The record further
establishes that there were two breaks in the interrogation,
approximately six and one-half hours and five hours long,
respectively, when the police were pursuing leads and that defendant
slept during those breaks (see People v McWilliams, 48 AD3d 1266,
1267, lv denied 10 NY3d 961). Moreover, we note that the length of
the interrogation was in large part owing to “the nature of the
crime[s] and defendant’s conflicting and constantly changing stories
to the police,” which the police investigated and attempted to verify
(People v Steward, 256 AD2d 1147, 1147, lv denied 93 NY2d 879).
Although defendant made four requests to make a telephone call
throughout the period, it was not until the end of the period of
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                                                         KA 11-01944

interrogation that he requested to call his mother. A 17-year-old
defendant is considered an adult for the purpose of criminal
prosecution (see generally People v Martin, 39 AD3d 1213, 1213, lv
denied 9 NY3d 878), and defendant does not contend that the police
engaged in “ ‘deception or trickery’ ” to isolate him from his family,
nor does the record support a conclusion that the police did so
(People v Harvey, 70 AD3d 1454, 1455, lv denied 15 NY3d 570; cf.
People v Townsend, 33 NY2d 37, 42).

     Defendant failed to preserve for our review his contentions
regarding circumstances surrounding the in-court identification of
defendant by an 18-year-old witness, i.e., that the witness should not
have been permitted to identify him and that the prosecutor and the
court engaged in misconduct (see CPL 470.05 [2]). In any event, those
contentions lack merit. The inability of a witness to make an
unequivocal pretrial identification goes to the weight of the
identification, not its admissibility (see People v Parks, 257 AD2d
636, 637, affd 95 NY2d 811). With respect to the allegations of
misconduct, we note that, following the subject witness’s
identification of defendant as the person she saw with two of the
victims on the night of the crimes at the home on Bernice Street, the
court directed the prosecutor to speak to the witness because she had
not complied with the court’s repeated instructions to speak more
loudly. Whether to permit contact between the prosecutor and a
witness in the middle of the witness’s testimony “falls within the
broad discretion allowed a trial court in its management of a trial”
(People v Branch, 83 NY2d 663, 667). We reject defendant’s contention
that the prosecutor’s statements to the witness were improper.
Contrary to defendant’s contention, the court’s efforts to clarify the
witness’s testimony did not give “any impression with respect to its
own view of the ‘credibility of the testimony of [the] witness or the
merits of [her identification]’ ” (People v Blair, 94 AD3d 1403, 1404,
lv denied 19 NY3d 971).

     Finally, contrary to defendant’s contention, he was not deprived
of effective assistance of counsel based upon counsel’s consent to
substitute an alternate juror for a juror who, because of illness, was
discharged shortly after deliberations began, rather than seeking a
mistrial to which he would have been entitled (see CPL 270.35 [1]).
It is well established that “[a]llowing a defendant to decide whether
deliberations should continue . . . provides the accused with more
options . . . For example, if a defendant believes that a favorable
outcome is possible, he may prefer to consent to deliberations . . .
But if the defendant believes that he is more likely to prevail at a
retrial, the constitution ensures that this remedy is available to a
defendant as well” (People v Gajadhar, 9 NY3d 438, 447-448). “[I]n
order to prevail on a claim of ineffective assistance of counsel based
on a single error or omission, a defendant must demonstrate that the
error was ‘so egregious and prejudicial’ as to deprive defendant of a
fair trial” (People v Cummings, 16 NY3d 784, 785, cert denied ___ US
___, 132 S Ct 203), and that is not the case here. Although defendant
correctly contends that some of the witnesses may be unavailable to
testify at a second trial, the prosecution could nevertheless use the
transcript of the testimony from the first trial in its case-in-chief
                                 -4-                           366
                                                         KA 11-01944

in a retrial (see CPL 670.10 [1]). Inasmuch as there was a cogent
defense that focused on the lack of credibility, and a motive to lie,
of several of the prosecution witnesses, we conclude that there was a
reasonable and legitimate basis for counsel’s strategic decision to go
forward with the deliberations with jurors who saw and heard the
witnesses (see generally People v Benevento, 91 NY2d 708, 712-713).
Finally, we reject defendant’s contention that his consent to
substitute a juror was not knowing, intelligent, and voluntary. The
record establishes that “the court ascertained that defendant
conferred with his counsel prior to signing a written consent in open
court in conformance with CPL 270.35 [1]” (People v Felton, 279 AD2d
331, 331, lv denied 96 NY2d 799; cf. People v Canales, 121 AD3d 14,
17; People v Teatom, 91 AD3d 1025, 1026). To the extent that
defendant’s contention “ ‘implicates his relationship with his trial
attorney and is to be proved, if at all, by facts outside the trial
record,’ ” it must be raised by way of a motion pursuant to CPL 440.10
(Felton, 279 AD2d at 331).




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
