Opinion
2014–04891 Ind.No. 5911/12
11-21-2018
The PEOPLE, etc., Respondent, v. David LOWE, Appellant.
The Litvak Law Firm, PLLC, Brooklyn, NY (Igor Litvak of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
The Litvak Law Firm, PLLC, Brooklyn, NY (Igor Litvak of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered April 23, 2014, convicting him of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's motion to set aside the verdict on the ground of juror misconduct since the alleged misconduct was admittedly known to the defendant prior to the jury's deliberations and rendition of a verdict, but he did not raise the issue until after the verdict was rendered (see People v. Rivera , 157 A.D.3d 545, 546, 69 N.Y.S.3d 37 ; People v. Scanlon , 52 A.D.3d 1035, 1039, 861 N.Y.S.2d 426 ; People v. Walsh , 222 A.D.2d 735, 736, 634 N.Y.S.2d 858 ; People v. Owens , 191 A.D.2d 715, 716, 595 N.Y.S.2d 518 ). The defendant's explanation for the delay was unsupported by the record. Moreover, contrary to the defendant's contention, the court conducted a sufficient inquiry of the juror and there was no indication of misconduct that prejudiced any of the defendant's substantial rights (see People v. Lemay , 69 A.D.3d 757, 758, 894 N.Y.S.2d 63 ). The defendant was not entitled to a hearing or an adjournment to further investigate the alleged misconduct (see People v. Rivera , 157 A.D.3d at 546, 69 N.Y.S.3d 37 ; People v. Brooks , 134 A.D.3d 574, 576, 23 N.Y.S.3d 26, affd 31 N.Y.3d 939, 73 N.Y.S.3d 110, 96 N.E.3d 206 ).
The defendant's contentions concerning evidentiary rulings made by the Supreme Court are unpreserved for appellate review (see People v. Brooks , 31 N.Y.3d 939, 942, 73 N.Y.S.3d 110, 96 N.E.3d 206 ; People v. Reed , 153 A.D.3d 1434, 1435, 60 N.Y.S.3d 694 ; People v. Massillon , 137 A.D.3d 1169, 1169, 26 N.Y.S.3d 884 ; People v. Charles , 121 A.D.3d 802, 802, 993 N.Y.S.2d 758 ). In any event, the Supreme Court's rulings were not erroneous. The court providently exercised its discretion in permitting, with proper limiting instructions, the testimony of the complainant's friend regarding an incident in the weeks before the subject shooting wherein he witnessed an argument between the complainant and the defendant and the defendant lifted his shirt to expose a gun in his waistband (see , People v. Morris , 21 N.Y.3d 588, 596–597, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Till , 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153 ; People v. Charles , 121 A.D.3d at 802–803, 993 N.Y.S.2d 758 ). The testimony of the complainant's friend as to his belief as to the identity of the shooter in the immediate aftermath of the shooting was properly admitted not for its truth, but to provide background information as to how and why the police pursued and confronted the defendant (see People v. Speaks , 28 N.Y.3d 990, 992, 42 N.Y.S.3d 644, 65 N.E.3d 673 ; People v. Garcia , 25 N.Y.3d 77, 86, 7 N.Y.S.3d 246, 30 N.E.3d 137 ; People v. Reynoso , 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456 ; People v. Tosca , 98 N.Y.2d 660, 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ), and was accompanied by appropriate limiting instructions to the jury (see People v. Speaks , 28 N.Y.3d at 992, 42 N.Y.S.3d 644, 65 N.E.3d 673 ; People v. Garcia , 25 N.Y.3d at 86, 7 N.Y.S.3d 246, 30 N.E.3d 137 ; People v. Tosca , 98 N.Y.2d at 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014 ). The complainant's certified hospital records were properly admitted into evidence as business records (see CPLR 2306[a] ; 4518[a], [c]; People v. Ortega , 15 N.Y.3d 610, 617, 917 N.Y.S.2d 1, 942 N.E.2d 210 ; People v. Atkinson , 150 A.D.3d 870, 871, 55 N.Y.S.3d 95 ; People v. Brown , 96 A.D.3d 869, 869, 946 N.Y.S.2d 254 ; People v. Jaikaran , 95 A.D.3d 903, 904, 943 N.Y.S.2d 223 ). In addition, the court properly acted within its discretion in permitting testimony concerning a letter purportedly sent by the defendant to the complainant (see People v. Reid , 19 N.Y.3d 382, 388, 948 N.Y.S.2d 223, 971 N.E.2d 353 ; People v. Rojas , 97 N.Y.2d 32, 39, 735 N.Y.S.2d 470, 760 N.E.2d 1265 ; People v. Santos , 150 A.D.3d 1270, 1271, 52 N.Y.S.3d 885 ). The defendant opened the door to such testimony and the testimony was " ‘reasonably necessary to correct the misleading impression’ " created thereby ( People v. Reid , 19 N.Y.3d at 388, 948 N.Y.S.2d 223, 971 N.E.2d 353, quoting People v. Massie , 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ).
The defendant's contentions that the prosecutor engaged in misconduct are unpreserved for appellate review (see CPL 470.05[2] ; People v. Negron , 150 A.D.3d 764, 765, 54 N.Y.S.3d 410 ; People v. Tapper , 64 A.D.3d 620, 621, 883 N.Y.S.2d 250 ) and, in any event, without merit. The prosecutor's comments in summation concerning the complainant's medical records were responsive to arguments raised by the defense (see People v. Lugg , 124 A.D.3d 679, 680, 998 N.Y.S.2d 459 ; People v. Green , 90 A.D.3d 948, 934 N.Y.S.2d 716 ), and were fair comment on the evidence and the inferences to be drawn therefrom (see People v. Brown , 139 A.D.3d 964, 966, 31 N.Y.S.3d 587 ; People v. Green , 90 A.D.3d at 948, 934 N.Y.S.2d 716 ; People v. Jones , 294 A.D.2d 517, 517, 742 N.Y.S.2d 562 ). There is no indication that the prosecutor's elicitation of certain demonstrative evidence was intended to arouse the emotions of the jury or to prejudice the defendant (see People v. Anderson , 29 N.Y.3d 69, 74, 52 N.Y.S.3d 256, 74 N.E.3d 639 ; People v. Wood , 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178 ).
The defendant's claim of ineffective 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 ). It is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (see People v. Spencer , 149 A.D.3d 983, 984, 52 N.Y.S.3d 430 ; People v. Marryshow , 135 A.D.3d 964, 965, 24 N.Y.S.3d 170 ; cf. People v. Crump , 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815 ). Since the defendant's claim of ineffective assistance of counsel cannot be fully resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's claim in its entirety (see People v. Spencer , 149 A.D.3d at 983, 52 N.Y.S.3d 430 ; People v. Marryshow , 135 A.D.3d at 965, 24 N.Y.S.3d 170 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ). Although the defendant made a post-conviction motion to vacate the judgment pursuant to CPL 440.10, the issues raised in that motion are not properly before this Court, as he was denied leave to appeal from the order denying that motion (see People v. Dunaway , 134 A.D.3d 952, 953, 22 N.Y.S.3d 476 ; People v. Coleman , 125 A.D.3d 879, 880, 3 N.Y.S.3d 130 ; People v. DeLuca , 45 A.D.3d 777, 777, 847 N.Y.S.2d 198 ).
LEVENTHAL, J.P., COHEN, LASALLE and CHRISTOPHER, JJ., concur.