| People v Bracey |
| 2014 NY Slip Op 08380 |
| Decided on December 2, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 2, 2014
Mazzarelli, J.P., Acosta, Saxe, Clark, Kapnick, JJ.
6265/07 13647 13646
v
Darren Bracey, Defendant-Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Wachtell, Lipton, Rosen & Katz, New York (Molly K. Grovak of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), for respondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered March 23, 2010, convicting defendant, after a jury trial, of burglary in the first degree (two counts), robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed. Order, same court and Justice, entered on or about April 30, 2013, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The motion court properly denied defendant's CPL 440.10 motion, based on his claim of ineffective assistance of counsel. Defendant has not established that his trial counsel's alleged errors resulted in prejudice under the state or federal standards (see People v Benevento, 91 NY2d 708 [1998]; Strickland v Washington, 466 U.S. 668 [1984]). Regardless of whether counsel should have obtained the victim's medical records earlier, and regardless of whether counsel should have consulted an expert or called one to testify about the victim's mental health, defendant has not shown a reasonable possibility that such an impeachment of the victim would have been any more successful than the impeachment devices counsel did employ at trial (see e.g. People v Carmichael, 118 AD3d 603 [1st Dept 2014]).
There is no indication that psychiatric records and testimony would have supported a conclusion that the victim's account of the incident was the product of mental illness, or would have supported defendant's defense. As the result of a suppression ruling, the victim's ability to identify defendant was not at issue. The victim's account of the crime was extensively corroborated by, among other things, a 911 call by another tenant in the apartment building and police observations of defendant's incriminating behavior when he was found dropping a loaded firearm. Accordingly, the absence of additional psychiatric evidence did not deprive defendant of a fair trial or undermine confidence in the result. Contrary to defendant's argument, People v Oliveras (21 NY3d 339 [2013]) is distinguishable, since that case involved a "total failure" to obtain psychiatric records that had a far greater potential to undermine the People's case (id. at 348).
The court properly denied defendant's motion to suppress his statements to the police. The officer's pre-Miranda questions constituted improper custodial interrogation, because even though these questions purported to inquire only about unrelated criminal activity for intelligence-gathering purposes, they were "reasonably likely to elicit an incriminating response" under the particular circumstances of the case (Rhode Island v Innis, 446 U.S. 291, 302 [1980]; compare People v Arroyo, 88 AD3d 495 [1st Dept 2011], lv denied 18 NY3d 955 [2011]). However, the post-Miranda statements were admissible because "the circumstances presented [*2]here do not constitute a single continuous chain of events" (People v White, 10 NY3d 286, 292 [2008], cert denied 555 U.S. 897 [2008]; see also People v Paulman, 5 NY3d 122, 131 [2005]) in light of, among other things, the limited extent of the Miranda violation, the officer's statement clarifying that the "first part" of the interview would be unrelated to defendant's case, and the lack of any other indication of coercive police conduct.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 2, 2014
CLERK