Opinion
2015-04-29
The PEOPLE, etc., respondent, v. Jule FRAZIER, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Rhea A. Grob of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Rhea A. Grob of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered July 14, 2010, convicting him of assault in the second degree (four counts), upon his plea of guilty, and criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to establish his prima facie entitlement to a missing witness charge, as there was no evidence that the uncalled witness had knowledge of a material issue or would provide noncumulative testimony ( see People v. Keen, 94 N.Y.2d 533, 539, 707 N.Y.S.2d 380, 728 N.E.2d 979; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227; People v. Rodriguez, 77 A.D.3d 975, 976, 911 N.Y.S.2d 79).
Contrary to the defendant's contention, certain photographs posted by the defendant on his MySpace page on the Internet were properly admitted at trial, as they tended to prove material issues, and to illustrate or elucidate other relevant evidence ( 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, 359, 345 N.Y.S.2d 482, 298 N.E.2d 637; People v. Texidor, 123 A.D.3d 746, 996 N.Y.S.2d 715; People v. Thomas, 99 A.D.3d 737, 738, 951 N.Y.S.2d 581). The trial court providently exercised its discretion in determining that the probative value of the photographs outweighed any prejudice to the defendant ( see People v. Wood, 79 N.Y.2d at 960–961, 582 N.Y.S.2d 992, 591 N.E.2d 1178; People v. Texidor, 123 A.D.3d 746, 746, 996 N.Y.S.2d 715; People v. Thomas, 99 A.D.3d at 738, 951 N.Y.S.2d 581).
The defendant's contention that the admission of testimony about an eyewitness's prior identification of him improperly bolstered that eyewitness's identification of him at trial is unpreserved for appellate review ( seeCPL 470.05[2] ), and we decline to reach that contention in the exercise of our interest of justice jurisdiction.
The condition of the plea that the defendant be truthful in responding to the inquiries of the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement ( see People v. Hicks, 98 N.Y.2d 185, 188–189, 746 N.Y.S.2d 441, 774 N.E.2d 205; People v. Bragg, 96 A.D.3d 1071, 946 N.Y.S.2d 890; People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506). The defendant's violation of that condition allowed the sentencing court to impose the enhanced sentence ( see People v. Butler, 49 A.D.3d at 895, 854 N.Y.S.2d 506). Moreover, as the defendant was aware that he faced an enhanced sentence if he failed to comply with the plea agreement, the enhanced sentence was appropriate ( see People v. Grant, 122 A.D.3d 767, 996 N.Y.S.2d 147; People v. White, 3 A.D.3d 543, 544, 770 N.Y.S.2d 630; People v. Delatorre, 306 A.D.2d 419, 420, 760 N.Y.S.2d 870; People v. Walters, 273 A.D.2d 418, 710 N.Y.S.2d 919). To the extent that the defendant argues that the sentence imposed is excessive, a general waiver of the right to appeal, which is knowing, voluntary, and intelligent, encompasses the claim that the term of imprisonment imposed under an enhanced sentence is harsh and excessive where, as here, the defendant was informed that a maximum sentence could be imposed if he failed to comply with the conditions of the plea agreement ( see People v. White, 3 A.D.3d 543, 544, 770 N.Y.S.2d 630; People v. Ortiz, 295 A.D.2d 449, 743 N.Y.S.2d 737; People v. Miles, 268 A.D.2d 489, 703 N.Y.S.2d 491).