People v. SmithPeople v. Smith
Lead Opinion
Aрpeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered March 8, 2012, convicting him of attempted murder in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with, inter alia, assault in the third degree and attempted murder in the second degree relating to two altercations with the complainant. The first occurred on July 27, 2010, and the second, an incident during which the defendant reрeatedly fired a gun at the complainant, hitting the complainant and his motorcycle, occurred several days thereafter. Both incidents occurred in front of an apartment building in Brooklyn where the defendant resided on the first floor with the mother of his children, Tameka Daniels, and their children. The complainant did not live in the building, but his daughter and her mother, Darlene Powell, resided on the third floor in an apartment facing the front of the building.
The day before the scheduled surgery, August 10, 2010, the complainant was visiting his daughter and Powell at their home and he encountered the defendant in front of the building. They exchanged words regarding the prior incident and the defendant accused the complainant of stealing his son’s bike. The complainant testified at trial that the defendant told him that he hated him and that, “I got something for you, you understand. You’ll bleed soon.” The defendant then went inside the building and returned, and, standing on top of the stairs of the stoop, started shooting at the complainant. As the complainant tried to drive off on his motorcycle, the defendant descended the stairs and continued to shoot at him. The complainant sustained three gunshot wounds and his motorcycle had several bullet holes in it. Powell called 911, as did two neighbors who heard shots being fired at that time. The police responded to the scene within minutes and found 11 shell casings on a path from the front door, down the steps, onto the sidewalk, and into the street. The defendant was apprеhended 20 days later.
After a jury trial, the defendant was convicted of attempted murder in the second degree and assault in the third degree. At issue in this case is whether any errors during the trial deprived the defendant of a fair trial. We find that they did not. Here, the evidence of the defendant’s guilt was overwhelming, and any errors that were made during the trial were harmless, as there is no significant probability that the errors contributed to the defendant’s conviction, and they did not deprive thе defendant of his constitutional right to a fair trial (see People v Grant,
The complainant testified at the trial that the defendant assaulted him during the first incident and, thereafter, on August 10, he saw the defendant and spoke to him before the defendant told the complainant he hated him and intended to kill him. The complainant testified that, after he heard the gunshots, he realized he was bleeding, looked over his shoulder and saw the defendant firing a gun at him.
Powell also testified that the defendant was the person who, during the first incident, assaulted the complainant, and who shot at and wounded the complainant during the second incident. Powell was familiar with the defendant because she had spent time with both Daniels and the defendant in their apartment. As to the shooting incident, Powell testified that she awoke to the sound of gunshots and looked out her window to see the defendant firing a gun at the complainant from the front door and stoop. Powell testified that she saw the defendant walk down the steps to the street while continuing to shoot at the complainant as the complainant drove away on his motorcycle. Powell testified that, once the complainant was out of sight, she saw the defendant drive off in his light blue van. Although Powell acknowledged on cross-examination that, on the day of the shooting, one of the two windows in her apartment that faced the street contained an air conditioner, the other had a child window guard in place, and she did not open or lean out either window, Powell’s testimony that she could see the defendant shooting from the doorway was corroborated by the path of shell casings the police found that led from the doorway to the street.
The contention of our dissenting colleague that the evidence was not overwhelming ignores the physical evidence that corroborated the testimony of the witnesses.
Although the People correctly concede that the Supreme
We also reject the defendant’s contention, adopted by our dissenting colleague, that he was deprived of a fair trial by еrrors he contends were made by the Supreme Court. A defendant is entitled to a fair trial, not a perfect trial (see People v Parris,
In any event, the admission of the recordings of certain of the phone cаlls made by the defendant which related to his prior criminal wrongdoing or immoral acts was not error; the calls were properly admitted to impeach the defendant so that the jury could properly assess his credibility (see People v Wise,
To the extent that defense counsel did not object to the alleged errors, such inaction did not deprive the defendant of the effective assistance of counsel (see Strickland v Washington,
The defendant’s contention that, in imposing sentence, the Supreme Court penalized him for exercising his right to a jury-trial, is without merit. Moreover, the sentence imposed was not excessive (see People v Suitte,
Dissenting Opinion
dissents, and votes to reverse the judgment appealed from, on the law and as a matter of discretion in the interest of justice, and to order a new trial, with the following memorandum: The defendant was convicted of attempted murder in the second degree and assault in the third degree relating to two altercations with the complainant. Thе complainant and the defendant came into contact with each other because the complainant’s former girlfriend and his daughter lived in the same apartment building as the defendant and the defendant’s family.
On July 27, 2010, after an argument between the defendant’s daughter and the complainant’s daughter, the defendant punched the complainant in the right eye, head, and back. The police were called to the scene by the building superintendent and preрared a complaint report, which was never entered into the NYPD database and was not produced at the trial. The complainant refused an ambulance, but sought medical attention the next day for his eye. According to the complainant, he was told that surgery was necessary to save his right eye, and he was scheduled for surgery on August 11, 2010.
On August 10, 2010, the complainant returned to the building. According to the complainant, as he was standing on the corner outside, the dеfendant drove up and went into the building, “came right back out,” and accused the complainant of stealing his son’s bike. They discussed their altercation that had occurred on July 27. The complainant claimed that he told the defendant that it was “all right, it’s cool,” but the defendant replied that he hated the complainant and wanted to kill him, and walked back toward the building. According to the complainant, he was preparing to leave on his motorcycle when hе heard shots, realized he was bleeding, looked over his shoulder, and realized that the defendant was shooting at him from the doorway of the building.
The complainant’s former girlfriend testified at the trial that she awoke to the sound of gunshots. At first she thought that the shooting was coming from the hallway because it was so loud, but then she realized that the sound of the shooting was coming from the window. She claimed that, from the window,
The complainant left the scene on his motorcycle, which was disabled by the gunfire. The complainant called the police from a laundromat. The police, responding to a call of shots fired, located the complainant, who was wounded in the wrist, left arm, and lower right leg. He was taken to a hospital, where he was treated and released. The police looked for the defendant for several days, and arrested him on August 30, 2010.
At the trial, the defendant, testifying in his own behalf, admitted that he punched the complainant on July 27, 2010. However, he claimed that he was not present in the vicinity at the time of the shooting, because he was having problems with his girlfriend. He claimed that the last time he was at the building was August 8, 2010, when he attended a barbecue for his son’s birthday.
Thus, the defendant’s participation in the fist fight was undisputed. In contrast, the evidence of the defendant’s involvement in the shooting was attested to by two interested witnesses, the complainant and his former girlfriend, both of whom had a motive to sеek retribution against the defendant for causing serious injury to the complainant’s right eye. Further, the former girlfriend’s testimony as to what she saw was somewhat suspect, since she acknowledged that the gunshot woke her from sleep, giving her little time to make her observations. The physical evidence, consisting of shell casings, and the damages inflicted by the bullets to the complainant’s motorcycle and his person, corroborated that a shooting in fact occurrеd, but not that the defendant was the perpetrator.
Contrary to my colleagues’ conclusion, the defendant’s defense was not mistaken identification, which was disproved by the fact that the parties knew each other and would not be mistaken (cf. People v Arce,
At the trial, the defense counsel sought to present the testimony of a witness who was a private investigator and former police detective who took measurements of the doorway of the defendant’s building, made observations from the window from which the complainant’s former girlfriend claimed she saw the shooting, and would testify that she could not have seen the stoop from the window. The prosecutor argued that that testimony was not relevant, because there was testimony that the defendant was leaning out the doorway, and therefore could have been seen by the complainant’s former girlfriend from her window. The defense counsel replied that the witness would testify that one could not see the stoop from that vantage point, and the defendant had a constitutional right to present evidence in his defense. The defense counsel also suggested a hearing outside of the presence of the jury, to determine the relevancy of the witness’s testimony. The trial court denied the defendant’s application to call the witness, on the ground that “that would be an improper attempt to have a layperson testify as to an opinion.”
The People correctly concede that it was error by the court to preclude the defense counsel from calling his private investigator as a witness. A defendant’s right to call witnesses in his or her behalf is a сonstitutional right essential to due process of law (see Chambers v Mississippi,
Here, the defense counsel’s request for a hearing on the admissibility of the witness’s testimony was improperly denied on the ground that opinion testimony from lay witnesses is inadmissible. However, there is no categorical proscription against the admission of opinions from lay witnesses (see People v Sanchez,
My colleagues acknowledge that the complainant’s former girlfriend was cross-examined as to what she could see or could not see from those windows, which was an issue of credibility for the jury, who had the opportunity to see and hear the witnesses. Unfortunately, the jury was deprived of the opportunity to see and hear all the witnesses on this issue, depriving the defendant of his fundamental right to the due process of law (see People v Robinson,
Contrary to my colleаgues’ conclusion, the parties did seek advance rulings with respect to certain recorded telephone calls which the defendant made from prison. Unfortunately, those rulings were more honored in their breach than in their observance.
At a pretrial Sandoval ruling (see People v Sandoval,
Nevertheless, when the defendant took the witness stand to testify in this case, he was cross-examined, over objection, about the telephone call he made about the check. After the defense counsel’s objection was overruled, despite the court’s prior ruling, the prosecutor read into the record the conversation and the defendant’s statement that although the check was not “fully” in his name, he had sufficient identification to cаsh it.
Further, the defendant was cross-examined, over objection, about a telephone call that he made indicating his possible
The People contend that the defendant opened the door to cross-examination about possible involvement in prostitution and forged checks when he testified that he earned his living as a maintenance worker, cleaning out buildings and taking out garbage, as well аs by writing music. However, the fact that the defendant claimed he was involved in legitimate endeavors to earn a living did not open the door to testimony indicating that the defendant had a propensity for criminal conduct (see People v Moore,
Thereafter, the trial court, in the presence of the jury, reprimanded defense counsel for interrupting the flow of “legitimate cross-examination” with “spurious objections.” Outside the presence of the jury, the court specificаlly reprimanded defense counsel for objecting to “piercing cross-examination of your client allegedly acting as a pimp.” Thus, at that juncture, it appeared that further objections by the defense counsel would have been futile (see People v Mezon,
Further, in summation, the prosecutor used evidence improperly adduced on cross-examination of the defendant to urge the jury to convict the defendant based upon his character as “a self-proclaimed hustler. You learned that while he wanted you to think that the only wаy he makes money is by maintenance, you learned he also makes money pimping out girls” and cashing checks in other people’s names. The prosecutor also noted that while he was living with his “babies’ mama,” he was “running the streets, partying” while the mother of his children was on public assistance. Such comments were highly prejudicial (see Gutierrez v City of New York,
Under the circumstances, the defendant was deprived of a fair trial. Accordingly, the judgment appealed from should be reversed, and a new trial ordered.