Opinion
343 KA 11-02364
05-08-2015
The PEOPLE of the State of New York, Respondent, v. Denys ALMEIDA, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1] ). We reject defendant's contention that the People's failure to introduce the exculpatory portions of defendant's statement to the police and to charge the grand jury with the defense of justification rendered the grand jury proceedings defective. The People have broad discretion in presenting their case to the grand jury and were not required to present all of their evidence tending to exculpate defendant (see People v. Mitchell,
82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 626 N.E.2d 630 ). With respect to the defense of justification, we conclude that the evidence before the grand jury was not sufficient to require the People to charge that defense (see id. at 514–515, 605 N.Y.S.2d 655, 626 N.E.2d 630 ).We reject defendant's further contention that County Court erred in failing to grant his request to instruct the trial jury on the defense of extreme emotional disturbance. Defendant did not offer any psychiatric testimony or any other proof that he suffered from a mental infirmity, not rising to the level of insanity, at the time of the incident. Thus, there was an insufficient offer of proof by defendant in support of a defense of extreme emotional disturbance (see People v. Smith, 1 N.Y.3d 610, 612, 776 N.Y.S.2d 198, 808 N.E.2d 333 ).
Defendant's contention that the court erred when it limited the cross-examination of a witness regarding her prior bad conduct toward defendant is without merit. The court has broad discretion to keep proceedings within manageable limits and to curtail exploration of collateral matters (see People v. Hudy, 73 N.Y.2d 40, 56, 538 N.Y.S.2d 197, 535 N.E.2d 250 ) and, here, we conclude that the court properly exercised its discretion.
Defendant also contends that comments made by the prosecutor during summation and the court's admission in evidence of the recording of a 911 call denied him a fair trial. We reject that contention. Initially, we note that all but one of the alleged instances of prosecutorial misconduct during summation were not preserved for this Court's review (see CPL 470.05[2] ; People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800 ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Even assuming, arguendo, that the remaining alleged instance of prosecutorial misconduct was improper, we conclude that it did not cause such substantial prejudice to defendant that he was denied due process of law (see People v. Santiago, 289 A.D.2d 1070, 1071, 735 N.Y.S.2d 852, lv. denied 97 N.Y.2d 761, 742 N.Y.S.2d 621, 769 N.E.2d 367 ). We further conclude that the admission in evidence of the recording of the 911 call was harmless error because “the ‘proof of [defendant's] guilt was overwhelming ... and ... there was no significant probability that the jury would have acquitted [him] had the proscribed evidence not been introduced’ ” (People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753, lv. denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114, reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624, quoting People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's further contention that the jury failed to give the evidence the weight it should be accorded when it determined that he intended to cause the victim's death, and when it rejected his defense of justification (see People v. Morgan, 207 A.D.2d 501, 501–502, 615 N.Y.S.2d 913, affd. 87 N.Y.2d 878, 638 N.Y.S.2d 942, 662 N.E.2d 260 ; People v. Fernandez, 304 A.D.2d 504, 504–505, 758 N.Y.S.2d 329, lv. denied 100 N.Y.2d 620, 767 N.Y.S.2d 403, 799 N.E.2d 626 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). There was testimony that the victim sustained 33 stab wounds, several of which were in the chest and back. “ ‘[D]efendant's homicidal intent could be inferred from evidence that defendant plunged a knife deep into the victim's chest [multiple times], in the direction and close vicinity of vital organs' ” (People v. Massey, 61 A.D.3d 1433, 1434, 877 N.Y.S.2d 589, lv. denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 ; see People v. Elston, 118 A.D.3d 538, 539, 988 N.Y.S.2d 154, lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 ; People v. Fils–Amie, 291 A.D.2d 358, 358–359, 738 N.Y.S.2d 342, lv. denied 98 N.Y.2d 650, 745 N.Y.S.2d 509, 772 N.E.2d 612 ). Furthermore, even if it was unclear who grabbed the knife first, “[d]efendant ended up with the knife and inflicted severe injuries on the [victim], while defendant remained virtually uninjured” with cuts to hands and fingers only (Fernandez, 304 A.D.2d at 505, 758 N.Y.S.2d 329 ). There was also evidence that the victim attempted to escape from defendant, but that defendant followed him and continued to stab him. Thus, the jury's rejection of the justification defense was not contrary to the weight of the evidence (see id. at 504–505, 758 N.Y.S.2d 329 ; see also Morgan, 207 A.D.2d at 501–502, 615 N.Y.S.2d 913 ). Finally, we reject defendant's contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.