Opinion
2015–05042 Ind.No. 4599/12
12-11-2019
The PEOPLE, etc., Respondent, v. Yohannes ANGLIN, Appellant.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Jordan Cerruti of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Yvonne Shivers of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, and Jordan Cerruti of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SHERI S. ROMAN, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
We agree with the Supreme Court's determination, after a hearing, denying that branch of the defendant's omnibus motion which was to suppress physical evidence and his statements to law enforcement officials, and denying the defendant's motion to controvert a search warrant and to suppress physical evidence seized in the execution thereof. Evidence at the hearing established, inter alia, that police officers were responding to a report of an assault in progress; the person who called the 911 emergency number, who was present at the location, stated that he heard a woman being beaten inside the apartment, heard her scream, and heard a male saying, "shut up"; and no one responded to the officers' repeated knocks on the apartment door. Contrary to the defendant's contention, the record supports the court's determination that the police were presented with an emergency situation that justified a warrantless entry into the defendant's apartment (see People v. Dallas , 8 N.Y.3d 890, 891, 832 N.Y.S.2d 893, 865 N.E.2d 1 ; People v. Mitchell , 39 N.Y.2d 173, 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607 ; People v. Sandford , 173 A.D.3d 777, 777, 99 N.Y.S.3d 690 ; People v. Maragh , 159 A.D.3d 722, 723, 69 N.Y.S.3d 493 ; People v. Timmons , 54 A.D.3d 883, 884, 864 N.Y.S.2d 111 ; People v. Manning , 301 A.D.2d 661, 663, 756 N.Y.S.2d 58 ) and the court's determination that the subsequently obtained search warrant was not obtained as the result of an illegal entry into the defendant's apartment.
Expert testimony " ‘may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand’ " ( People v. Williams , 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260, quoting People v. Carroll , 95 N.Y.2d 375, 387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 ; see People v. Carter , 151 A.D.3d 877, 877, 58 N.Y.S.3d 406 ). Here, the Supreme Court providently exercised its discretion in permitting a witness, who was deemed an expert in the area of forensic psychology with a specialization in interpersonal violence and traumatic stress, to testify on the subject of domestic violence generally, as her testimony was relevant to explain the behavior patterns of victims of domestic violence that might appear unusual or that jurors might not be expected to understand, and the witness did not testify as to the particular facts of the case or offer an opinion as to whether the conduct at issue constituted domestic violence (see People v. Whitson , 166 A.D.3d 663, 664, 86 N.Y.S.3d 83 ; People v. Walters , 127 A.D.3d 889, 889, 7 N.Y.S.3d 336 ; People v. Thompson , 119 A.D.3d 966, 966–967, 989 N.Y.S.2d 881 ).
The Supreme Court providently exercised its discretion in admitting a nude photograph of the child complainant into evidence, as the photograph was neither excessively gruesome nor introduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant (see People v. Wood , 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178 ; People v. Pobliner , 32 N.Y.2d 356, 369–370, 345 N.Y.S.2d 482, 298 N.E.2d 637 ; People v. Barnett , 163 A.D.3d 700, 702, 80 N.Y.S.3d 461 ). Rather, the photograph was relevant to help illustrate the child's physical condition and to elucidate the testimony of the People's witnesses (see People v. Barnett , 163 A.D.3d at 702, 80 N.Y.S.3d 461 ; People v. Jones , 142 A.D.3d 678, 678–679, 37 N.Y.S.3d 278 ; People v. Fernandez , 115 A.D.3d 977, 978, 982 N.Y.S.2d 174 ).
Although some of the prosecutor's remarks in the opening statement and in summation were improper, contrary to the defendant's contention, raised in his pro se supplemental brief, any instances of prosecutorial misconduct during opening and summation were cured by the Supreme Court's prompt curative instructions (see People v. Galloway , 54 N.Y.2d 396, 398, 446 N.Y.S.2d 9, 430 N.E.2d 885 ) or were not, either individually or collectively, so egregious so as to deprive the defendant of a fair trial (see People v. Lopez , 150 A.D.3d 1266, 1267, 52 N.Y.S.3d 902 ; People v. Alphonso , 144 A.D.3d 1168, 1168–1169, 43 N.Y.S.3d 83 ).
The prosecutor's use of a chart in summation, depicting, inter alia, a partial compilation of certain phone records in evidence did not deprive the defendant of a fair trial (see People v. Williams , 29 N.Y.3d 84, 89–90, 52 N.Y.S.3d 266, 74 N.E.3d 649 ; People v. Anderson , 29 N.Y.3d 69, 72–73, 52 N.Y.S.3d 256, 74 N.E.3d 639 ). The prosecutor's comments with regard to the phone records and the information contained in the chart, with limited exception, were fair comment on the evidence. Moreover, although the Supreme Court informed the jury that the prosecutor had made a representation that the chart was a compilation of exhibits in evidence, it made clear that the chart was a demonstrative aid and was not in evidence. Further, minor discrepancies between the chart and the exhibits did not deprive the defendant of a fair trial (see People v. Anderson , 29 N.Y.3d at 74, 52 N.Y.S.3d 256, 74 N.E.3d 639 ; People v. Johnson , 159 A.D.3d 833, 835, 72 N.Y.S.3d 536 ; People v. Choi , 137 A.D.3d 808, 810, 26 N.Y.S.3d 333 ; People v. Haigler , 44 A.D.3d 329, 843 N.Y.S.2d 36 ).
"At any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of the case. Upon such a request, the court ... must give such requested information or instruction as the court deems proper" ( CPL 310.30 ). Pursuant to CPL 310.30, "the jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must give such requested information or instruction as [it] deems proper" ( People v. Velasco , 77 N.Y.2d 469, 474, 568 N.Y.S.2d 721, 570 N.E.2d 1070 [internal quotation marks omitted] ). Here, the Supreme Court providently exercised its discretion in permitting the chart used by the prosecutor during summation as a demonstrative aid to be displayed to the jury in the courtroom in response to a note from the jury requesting the chart (see id. at 474, 568 N.Y.S.2d 721, 570 N.E.2d 1070 ). The court instructed the jury that the demonstrative aid was not evidence, that it was not a substitute for evidence, and did not provide copies or permit the jury to view the demonstrative aid in the jury room (see People v. Anderson , 29 N.Y.3d at 73, 74 N.E.3d 639 ). The defendant's contention, raised in his main brief and his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell , 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans , 16 N.Y.3d 571, 575 n 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman , 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
The defendant's contention, raised in his pro se supplemental brief, that the People committed a Brady violation (see Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) is based on matter dehors the record and is not reviewable on direct appeal (see People v. Krivoi , 81 A.D.3d 978, 979, 917 N.Y.S.2d 273 ).
Contrary to the defendant's contention, raised in his pro se supplemental brief, the Supreme Court providently exercised its discretion in permitting amendment of, inter alia, those counts of the indictment charging reckless endangerment in the first degree (see Penal Law § 120.25 ) and kidnapping in the first degree (see Penal Law § 135.25[2][a] ) by expanding the relevant time periods. The amendment did not change the theory or theories of the prosecution and did not tend to prejudice the defendant on the merits (see CPL 200.70[1] ; People v. Sinha , 84 A.D.3d 35, 44–45, 922 N.Y.S.2d 275, affd 19 N.Y.3d 932, 951 N.Y.S.2d 697, 976 N.E.2d 223 ; People v. Kent , 79 A.D.3d 52, 71, 910 N.Y.S.2d 78, mod 19 N.Y.3d 290, 947 N.Y.S.2d 798, 970 N.E.2d 833 ; People v. Straniero , 17 A.D.3d 161, 161, 792 N.Y.S.2d 466 ).
Also contrary to the defendant's contention, raised in his pro se supplemental brief, the People established the authenticity of certain evidence seized from the defendant's apartment by providing testimony that the offered evidence was genuine and had not been tampered with (see People v. Price , 29 N.Y.3d 472, 476, 80 N.E.3d 1005 ; People v. Julian , 41 N.Y.2d 340, 342–343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ). Any deficiencies in the chain of custody went only to the weight to be given to the evidence, and not to its admissibility (see People v. Hawkins , 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Julian , 41 N.Y.2d at 344, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; People v. Ventura , 172 A.D.3d 1252, 1252, 98 N.Y.S.3d 858 ). Similarly, any possible contamination resulting from the police officer's alleged mishandling of the evidence went to the weight rather than to the admissibility of the evidence (see People v. Ortiz , 80 A.D.3d 628, 630, 914 N.Y.S.2d 281 ).
Inasmuch as the defendant made an application to discharge a prospective juror, he cannot now be heard to complain, as he does in his pro se supplemental brief, that the Supreme Court should not have granted that application and discharged that prospective juror (see People v. Ogletree , 172 A.D.3d 754, 754, 97 N.Y.S.3d 485 ; People v. Thomas , 129 A.D.3d 1110, 1110, 10 N.Y.S.3d 461 ; People v. Kessler , 122 A.D.3d 1402, 1404–1405, 996 N.Y.S.2d 836 ).
Similarly, since defense counsel consented to the Supreme Court's proposed charge of kidnapping in the first degree (see Penal Law § 135.25[2][a] ), the defendant cannot be heard to complain, as he does in his pro se supplemental brief, that the court's charge was improper.
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., BALKIN, ROMAN and BARROS, JJ., concur.