State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 19, 2015 105469 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DAQUAN KAREEM GRAY, Also Known

as DAY DAY,

Appellant.

________________________________

Calendar Date: January 13, 2015

Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.

__________

David E. Woodin, Catskill, for appellant.

James R. Farrell, District Attorney, Monticello (Meagan K.

Galligan of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the County Court of Sullivan

County (McGuire, J.), rendered August 7, 2012, upon a verdict

convicting defendant of the crimes of gang assault in the first

degree, assault in the first degree, criminal use of a firearm in

the first degree (two counts) and criminal possession of a weapon

in the second degree (two counts).

Defendant was charged in a six-count indictment for crimes

stemming from the shooting of the victim in his neck at close
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range, causing him to become paralyzed from the chest down.1

Following a jury trial, defendant was convicted of gang assault

in the first degree, assault in the first degree, two counts of

criminal use of a firearm in the first degree and two counts of

criminal possession of a weapon in the second degree. He was

thereafter sentenced as a second violent felony offender to an

aggregate prison term of 65 years, to be followed by five years

of postrelease supervision. Defendant now appeals. 

Defendant asserts that County Court erred in permitting the

People to use evidence of his withdrawn alibi notice to impeach

his credibility on cross-examination. We agree. The Court of

Appeals has unequivocally established that the People may not use

a defendant's notice of alibi for impeachment purposes on crossexamination where the defendant has withdrawn such notice prior

to trial (see People v Brown, 98 NY2d 226, 235 [2002]; cf. People

v Rodriguez, 3 NY3d 462, 467 [2004]). Here, three months prior

to trial, defendant gave notice that he intended to call six

alibi witnesses who would "testify that at the time of the crime

[he] was [in] South Fallsburg, New York." On the eve of trial,

defendant withdrew the alibi notice. 

At trial, defendant testified and acknowledged that he was

in the Village of Monticello, Sullivan County, in the area of the

shooting when it occurred. In response, the People aggressively

questioned defendant regarding his withdrawn alibi notice,

asking, over repeated objections, whether he had asked his wife

"to come in[to County Court] and lie for [him]." When defendant

denied that he had done so, the People responded, "Do you know

what the consequences for perjury are?" and "Do you know that

perjury is a crime?" Later in the presence of the jury, upon the

application of the People, County Court took judicial notice of

the alibi notice filed on behalf of defendant. The People were

permitted to question defendant concerning the substance of the

notice, again asking defendant if he had previously intended to

call his wife to testify that he was in South Fallsburg on the

night of the incident and whether he was aware of the

1 Defendant's three codefendants pleaded guilty prior to

trial. 
-3- 105469 

consequences of perjury.2

By his generalized objections, defendant failed to preserve

a constitutional claim (see People v Kello, 96 NY2d 740, 743-744

[2001]; see also People v Ashley, 8 AD3d 136, 136 [2004], lv

denied 3 NY3d 670 [2004]), but did preserve the common-law

evidentiary issue for our review (see People v Brown, 98 NY2d at

235). Thus, we apply nonconstitutional harmless error analysis,

by considering whether "'the proof of . . . defendant's guilt,

without reference to the error, is overwhelming' and [if] there

is [a] 'significant probability . . . that the jury would have

acquitted . . . defendant had it not been for the error'" (People

v Byer, 21 NY3d 887, 889 [2013], quoting People v Crimmins, 36

NY2d 230, 241-242 [1975]). 

Here, evidence of defendant's guilt was not overwhelming

(see People v Brown, 114 AD3d 1017, 1020 [2014]). In addition to

the lack of physical evidence linking defendant to the crimes,

there are numerous inconsistencies in the testimony of the

People's witnesses regarding, among other things, the lighting at

the time and location of the shooting, the number and identities

of the individuals present, who defendant left with following the

2 The People maintain that their use of information from

defendant's withdrawn alibi notice was proper because, prior to

withdrawing his alibi notice, defendant allegedly stated, through

his attorney during a pretrial conference in open court, that he

intended to call "certain people" pursuant to the alibi notice

given by his prior attorney. The People thus attempt to

distinguish the use of this statement to impeach defendant on

cross-examination from the use of information in a withdrawn

alibi notice for impeachment purposes, the latter of which is

clearly prohibited by People v Brown (supra) and People v

Rodriguez (supra). We conclude that no meaningful distinction

exists here, and we ascertain nothing in the reasoning underlying

those cases to support drawing such a distinction. Defense

counsel's pretrial conference statement appears to be nothing

more than a reminder to County Court regarding the actions of his

predecessor. In any event, it is undisputed that defendant

subsequently withdrew his alibi notice. 
-4- 105469 

shooting, what direction he traveled in, and whether defendant

carried a weapon as he allegedly fled. Furthermore, despite

being questioned by police immediately following the shooting,

the victim waited months before making a statement to the police

that implicated defendant. 

Turning to the second prong of the harmless error analysis,

we conclude that a significant probability exists that the jury

would have acquitted defendant without this error. Notably,

during deliberations, the jury asked "if [defendant's] original

alibi of defense [was] in evidence." As this "case turned

totally on credibility," the error here cannot be deemed

harmless, particularly in light of the jury's clear interest in

defendant's alibi notice when making its credibility assessments

(People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883

[2005]; see People v Caba, 66 AD3d 1121, 1124 [2009]). 

Defendant's remaining arguments are either academic or without

merit.3

Rose, Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is reversed, on the law, and

matter remitted to the County Court of Sullivan County for a new

trial.

ENTER:

Robert D. Mayberger

Clerk of the Court

3 Although defendant's contention that he was improperly

sentenced is rendered academic by our reversal of his judgment of

conviction, we note that he correctly argues that any sentence

for criminal use of a firearm in the first degree under the third

count of the indictment must run concurrently to a sentence for

gang assault in the first degree under the first count of the

indictment (see Penal Law § 70.25 [2]; People v McFarland, 106

AD3d 1129, 1132 [2013], lv denied 22 NY3d 1140 [2014]; People v

Abdullah, 298 AD2d 623, 624 [2002]).