People v. SmithPeople v. Smith
Daniel Guttmann, Smithtown, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Christopher J. Blira-Koessler of counsel), for rеspondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered January 11, 2016, convicting him of attempted murder in the second degree (two counts), assault in the first degree (two counts), criminal possession of a weapon in the second degree, reckless endangеrment in the first degree, criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The charges against the defendant arose from a shooting in Astoria, Queens, that occurred on July 3, 2014. One victim was shot in his arm, back, and leg, and a second victim, who was
The defendant contends that his convictions were аgainst the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see
We agree with the Supreme Court‘s determination allowing the admission оf a recording of a call to the 911 emergency number made by the father of the then-15-year-old victim. The record established that the declarant made the call within seconds of the shooting after his son cried out that he had been shot, and the father saw his neighbor, who was also shot and who the father thought was dying, fall to the ground in a pool of blood. Although the declarant‘s statements to the 911 operator were hearsay, they were nevertheless admissible under the excеption for excited utterances “made contemporaneously or immediately after a startling event‘” (People v Cummings, 31 NY3d 204, 209, quoting People v Edwards, 47 NY2d 493, 496-497; see People v Hernandez, 28 NY3d 1056, 1057) or present sense impressions made while hе was “perceiving the event as it is unfolding or immediately afterward” which are “corroborated by independent evidence establishing [their] reliability” (People v Cantave, 21 NY3d 374, 382; see People v Jones, 28 NY3d 1037, 1038). Accordingly, wе agree with the court‘s determination that the recording was admissible as an excited utterance and/or a present
The defendant contends that the lаte disclosure of a recording of a 911 call made by an unidentified female declarant constituted a Brady violation (see Brady v Maryland, 373 US 83), and that the Supreme Court should have admitted the phone call into evidence. These contentions are without merit. “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material‘” (People v Hayes, 17 NY3d 46, 50, quoting People v Fuentes, 12 NY3d 259, 263; see People v Spruill, 164 AD3d 1270). The recording of the 911 call made by the unidentified female declarant was disclosed to defense counsel 12 days before the court began taking testimony and, in any event, the contents of the call were inadmissible hearsay, as there was no evidence that the declarant personally observed the incident (see People v Cummings, 31 NY3d at 209). Accordingly, the defendant cannot establish either that the People suрpressed the evidence or that, even if it was suppressed, that suppression resulted in any prejudice to him.
The defendant‘s contention that he was not permitted to present evidence and argument at the Sandoval hearing (see People v Sandoval, 34 NY2d 371) is unpreserved for appellate review and, in any event, is not supported by the record (see People v Jackson, 29 NY3d 18, 22; People v Barnett, 163 AD3d 700, 701-702). Moreover, the Sandoval compromise adopted by the Supreme Court was not improper (see People v Jackson, 29 NY3d at 21, 23; People v Smith, 18 NY3d 588, 597-598; People v Ragland, 136 AD3d 845).
To the extent that the Supreme Court should not have allowed the father оf the 15-year-old victim to testify that, at the time of the shooting, he and his son were waiting for a taxi to take them to inform other family members of the death of their father/grandfather, on the ground that this information would tend to evoke sympathy from the jury, that prejudice was either dispelled by the court‘s instructions to the jury or was harmless in light of the overwhelming evidence of the defendant‘s guilt and the absence of any significant probability that any error contributed to his conviction (see People v Cherry, 163 AD3d 706, 707; People v Crimmins, 36 NY2d 230, 237).
The
The defendant contends that the imposition of consecutive sentences for the two counts of attempted murder in the second degree was illegal and that the sentence imposed was excessive. Pursuant to
Here, the defendant fired multiple shots with the intent of hitting the older victim and one of those shots hit the 15-year-old victim. However, “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction,
The defendant‘s remaining contentions are unpreserved for appellate review and, in any event, without merit.
DILLON, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court