Opinion
14350 Ind. No. 4746/17 Case No. 2020–02166
10-14-2021
The PEOPLE of the State of New York, Respondent, v. Anthony PINKSTON, Defendant–Appellant.
Jonathan Rosenberg, PLLC, Brooklyn (Ralph P. Franco, Jr. of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Jonathan Rosenberg, PLLC, Brooklyn (Ralph P. Franco, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Gische, J.P., Moulton, Gonza´lez, Kennedy, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January 29, 2020, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
The court's responses to jury notes satisfied the requirements of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991]. The court did not paraphrase or summarize the jury's requests, but disclosed them to counsel in full in the jury's own words. The reading was essentially verbatim, except where the court used the third person, as in "they are asking," or interrupted the reading for colloquy with counsel (see People v. Almonte, 81 A.D.3d 564, 565, 917 N.Y.S.2d 193 [2011], lv denied 16 N.Y.3d 892, 926 N.Y.S.2d 28, 949 N.E.2d 976 [2011] ; People v. Ramirez, 60 A.D.3d 560, 561, 875 N.Y.S.2d 482 [1st Dept. 2009], affd 15 N.Y.3d 824, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ). Defendant's remaining complaints about the court's handling of jury notes do not implicate the mode of proceedings, and we decline to review these unpreserved claims in the interest of justice. As an alternative holding, we also reject them on the merits.
The court providently exercised its discretion in permitting a police officer who had arrested defendant for driving while intoxicated several months before the charged homicide to identify defendant in a surveillance video from the night of that crime (see People v. Coleman, 78 A.D.3d 457, 910 N.Y.S.2d 69 [1st Dept. 2010], lv denied 16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ). Defendant had "changed his ... appearance since being photographed or taped," and the detective, who had ample familiarity with defendant, "knew the defendant before that change of appearance" ( id. at 458, 910 N.Y.S.2d 69 ). Defendant's challenges to the admission of a portion of a video of himself taken in connection with his intoxicated driving arrest are unavailing especially given the court's instruction of the limited purpose for which it was offered.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant's identity as the assailant was established by a chain of persuasive circumstantial evidence.