Opinion
2018–06224 Ind. No. 654/16
12-20-2023
The PEOPLE, etc., respondent, v. Tyquan LONG, appellant.
Patricia Pazner, New York, NY (Alice R.B. Cullina of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Mariana Zelig of counsel), for respondent.
Patricia Pazner, New York, NY (Alice R.B. Cullina of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Mariana Zelig of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered April 25, 2018, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree (two counts), assault in the second degree, attempted assault in the second degree (two counts), aggravated criminal contempt, and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial because the Supreme Court permitted four witnesses to testify that they believed the defendant to be the person depicted in surveillance video footage is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the defendant was not deprived of a fair trial by that testimony, as there was a basis for concluding that the witnesses were more likely than the jury to correctly identify the defendant in the video footage (see People v. Fernandez, 210 A.D.3d 693, 695, 177 N.Y.S.3d 631 ; People v. Minchala, 194 A.D.3d 754, 756, 143 N.Y.S.3d 575 ).
Contrary to the defendant's contention, the Supreme Court properly admitted a recording of a 911 call into evidence under the excited utterance exception to the hearsay rule (see People v. Huertas, 186 A.D.3d 731, 733, 128 N.Y.S.3d 597, affd 38 N.Y.3d 1129, 172 N.Y.S.3d 660, 192 N.E.3d 1139 ; People v. Legere, 81 A.D.3d 746, 749–750, 916 N.Y.S.2d 187 ). Moreover, the admission of the recording of the 911 call did not violate the defendant's right of confrontation because the declarant's statements were not testimonial (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ; People v. Nieves–Andino, 9 N.Y.3d 12, 15, 840 N.Y.S.2d 882, 872 N.E.2d 1188 ). The information conveyed by the declarant during the 911 call was for the purpose of seeking police intervention and did not result from structured questioning (see People v. Gittens, 214 A.D.3d 670, 671, 182 N.Y.S.3d 914 ; People v. Thomas, 187 A.D.3d 949, 950, 130 N.Y.S.3d 717 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05[2] ) and petit larceny (id. § 155.25) beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to all counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that certain comments made by the prosecutor during the opening statement and summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant failed to object to the challenged statements, seek curative instructions, or move for a mistrial on the grounds raised on appeal (see CPL 470.05[2] ; People v. Hengjun Chao, 217 A.D.3d 777, 778–779, 191 N.Y.S.3d 135 ). In any event, the prosecutor's remarks, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ), or were fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651 ), and any improper statements "were not so flagrant or pervasive" as to have deprived the defendant of a fair trial ( People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewed in totality, the record reflects that defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ).
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 unpreserved for appellate review and, in any event, without merit.
CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.