Opinion
2019–08838 Ind. No. 1740/16
12-28-2022
The PEOPLE, etc., respondent, v. John GRADY, appellant.
Patricia Pazner, New York, NY (Ryan Miller of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Rebecca Height of counsel), for respondent.
Patricia Pazner, New York, NY (Ryan Miller of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Rebecca Height of counsel), for respondent.
MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Guidice, J.), rendered June 27, 2019, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed. The defendant contends that the admission of the victim's autopsy report prepared by a medical examiner through the testimony of another medical examiner employed by the Office of the Chief Medical Examiner for the City of New York, who did not prepare the report, violated his constitutional right of confrontation. This contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Wu Long Chen, 210 A.D.3d 702, 177 N.Y.S.3d 698, 2022 N.Y. Slip Op. 06145 [2d Dept.] ; People v. Lancaster, 166 A.D.3d 807, 809 ). Even if the report could be deemed to include testimonial evidence (see People v. Pealer, 20 N.Y.3d 447, 453–454, 962 N.Y.S.2d 592, 985 N.E.2d 903 ), we are satisfied that the evidence of the defendant's guilt, without reference to any error in the report's admission, was overwhelming, and there is no reasonable possibility that the error contributed to the defendant's conviction. Thus, any error in its admission was harmless beyond a reasonable doubt (see People v. Hardy, 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953 ; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Herb, 110 A.D.3d 829, 972 N.Y.S.2d 668 ).
The Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial based upon testimony that the defendant had been incarcerated previously. While inadmissible, the challenged testimony was brief and immediately addressed by the court, which provided the jury with a curative instruction sufficient to dispel any prejudice (see People v. Dragani, 204 A.D.3d 690, 691, 166 N.Y.S.3d 253 ; People v. Murphy, 151 A.D.3d 888, 889, 53 N.Y.S.3d 835 ; People v. Johnson, 139 A.D.3d 967, 975, 34 N.Y.S.3d 62, affd 31 N.Y.3d 942, 73 N.Y.S.3d 113, 96 N.E.3d 209 ).
Further, the Supreme Court's expanded identification charge, which mirrored the model charge set forth in CJI2d(N.Y.) Identification—Witness Plus, was sufficient under the circumstances of this case (see People v. Blas, 70 A.D.3d 846, 847, 894 N.Y.S.2d 520 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions are without merit.
DILLON, J.P., ZAYAS, DOWLING and WAN, JJ., concur.