People v PhilipsPeople v Philips
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O‘Hara Gillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered January 3, 2006, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant‘s omnibus motion which was to suppress his statements to law enforcement authorities.
Ordered that the judgment is modified, on the law, by reducing the defendant‘s conviction of assault in the first degree under count three of the indictment to assault in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant‘s guilt of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and assault in the first degree under count four of the indictment. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see
However, we agree with the defendant that the evidence was not legally sufficient to establish his guilt of assault in the first degree under count three of the indictment because it did not demonstrate that the complainant Spraus sustained a “serious physical injury” (
Contrary to the defendant‘s contention, the Supreme Court providently exercised its discretion in granting the People‘s application to reopen their case to admit certain evidence concerning a witness‘s ability to describe the defendant shortly after the shooting in order to rectify a misleading impression created by defense counsel‘s summation (see People v Thompson, 81 AD3d 670, 671-672 [2011], affd 22 NY3d 687 [2014]; People v Loney, 43 AD3d 726 [2007]; People v De Los Angeles, 270 AD2d 196, 199 [2000], affd sub nom. People v Collins, 96 NY2d 837 [2001]; see also People v Massie, 2 NY3d 179, 185 [2004]).
The defendant‘s contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is largely unpreserved for appellate review, since he either failed to object to the remarks at issue, made only a general objection, or failed to request further curative relief when his objections were sustained, and he failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see
The sentence imposed with respect to the remaining crimes of which the defendant was convicted was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant‘s contention, in his pro se supplemental brief, that his statements should have been suppressed because they were obtained in violation of his right to counsel is based on matter dehors the record and, thus, cannot be reviewed on direct appeal (see People v Lee, 105 AD3d 870, 871 [2013]).
The defendant‘s remaining contentions are unpreserved for appellate review and, in any event, without merit. Balkin, J.P., Leventhal, Maltese and LaSalle, JJ., concur.