Opinion
2015-02-6
The PEOPLE of the State of New York, Respondent, v. Michael R. WATKINS, Defendant–Appellant.
Lesley C. Germanow, Fulton, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
Lesley C. Germanow, Fulton, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ) and assault in the second degree (§ 120. 05[2] ) arising from a shooting at the home of defendant's former girlfriend. We reject defendant's contention that he was denied a fair trial as the result of County Court's questioning of a police investigator. The court was “entitled to question [the investigator] to clarify [her] testimony and to facilitate the progress of the trial” (People v. Williams, 107 A.D.3d 1516, 1517, 966 N.Y.S.2d 784, lv. denied21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [internal quotation marks omitted] ), and we conclude that, during the questioning, the court exhibited no partiality, bias or hostility against defendant ( see People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467).
Contrary to defendant's contention, the court properly refused to suppress evidence obtained by the police without a warrant from defendant's cell phone service provider. The provider disclosed information to the police concerning defendant's location through the use of a technique commonly known as “pinging” ( see generally People v. Wells, 45 Misc.3d 793, 796–797, 991 N.Y.S.2d 743; People v. Moorer, 39 Misc.3d 603, 610–615, 959 N.Y.S.2d 868). Even assuming, arguendo, that the use of that technique constituted a search implicating the protections of the Federal and State Constitutions ( seeU.S. Const., 4th Amend.; N.Y. Const., art. I, § 12), we conclude that the People established that exigent circumstances justified the police in proceeding without a warrant ( see generally People v. McBride, 14 N.Y.3d 440, 446, 902 N.Y.S.2d 830, 928 N.E.2d 1027, cert. denied ––– U.S. ––––, 131 S.Ct. 327, 178 L.Ed.2d 212; People v. Stevens, 57 A.D.3d 1515, 1515–1516, 871 N.Y.S.2d 525, lv. denied12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937).
Contrary to defendant's further contention, the court properly admitted in evidence a 911 recording containing the statements of a witness present at the shooting under the excited utterance exception to the hearsay rule ( see People v. Mulligan, 118 A.D.3d 1372, 1372–1373, 988 N.Y.S.2d 354). We agree with defendant, however, that the court erred in failing to redact that portion of the recording containing hearsay statements of the victim that were relayed to the 911 operator by the witness ( see id. at 1373, 988 N.Y.S.2d 354; People v. Fenner, 283 A.D.2d 516, 517–518, 727 N.Y.S.2d 117, lv. denied96 N.Y.2d 939, 733 N.Y.S.2d 379, 759 N.E.2d 378). Inasmuch as there is overwhelming evidence of defendant's guilt and no significant probability that the error contributed to his conviction, we conclude that the error is harmless ( see Mulligan, 118 A.D.3d at 1373, 988 N.Y.S.2d 354; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant failed to preserve for our review his contention that the evidence of physical injury is insufficient to support his conviction of assault in the second degree ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that defendant's remaining challenges to the legal sufficiency of the evidence lack merit.
Finally, we reject defendant's contentions that he was denied a fair trial by the cumulative effect of the alleged errors ( see People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224, lv. denied11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447), and that the sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.