| People v Anderson |
| 2014 NY Slip Op 01351 [114 AD3d 1083] |
| February 27, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vClaude Anderson, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered March 21, 2012, upon a verdict convicting defendant of thecrimes of assault in the second degree (two counts), aggravated criminal contempt,criminal contempt in the first degree (two counts) and menacing in the second degree.
In August 2010, defendant visited his paramour, Kimmarie Stokes, in an apartmentin the City of Schenectady, Schenectady County where Stokes resided with herroommates, Melvin Moore and Marion Little. Little stepped outside the apartment, andshortly thereafter an altercation occurred, resulting in both Moore and Stokes beingstruck in the head with a baseball bat. Little saw defendant run out of the residence,followed by Stokes, who was bleeding from the head. Stokes told Little that Moore hadalso been injured. Upon entering the apartment, Little found Moore unconscious andcalled 911. Defendant was no longer at the scene when police arrived, but he lateridentified himself to law enforcement officers and was arrested.
Defendant was indicted for various offenses, including contempt charges arisingfrom an order of protection already in effect that required him to refrain from illegalcontact with Stokes. A new order of protection was issued that prohibited defendant fromall direct or indirect contact with Stokes. Thereafter, defendant contacted Stokes bytelephone from jail, resulting in a second indictment and a new contempt charge.Following a consolidated jury trial, he was [*2]convictedof assault in the second degree (two counts), aggravated criminal contempt, criminalcontempt in the first degree (two counts) and menacing in the second degree, and wassentenced to an aggregate prison term of 3
Defendant first contends that his constitutional right to a speedy trial was violated bythe 17-month delay between his August 2010 arrest and the January 2012 trial.[FN1] Whether a constitutional violation has occurred depends upon such factors as whetherthere was a lengthy period of pretrial incarceration, the nature of the charges, the extentof and reasons for the delay, and any resulting prejudice (see People vTaranovich, 37 NY2d 442, 445 [1975]; People v Swan, 90 AD3d 1146, 1147 [2011]). Here,defendant was incarcerated throughout the period between his arrest and the trial. Whilethis factor weighs in his favor, the others do not. The initial delay was caused by aconflict in defendant's legal representation that was discovered after the People declaredreadiness for trial in October 2010; attempts to assign substitute counsel were frustratedby additional conflicts thereafter, resulting in several adjournments. These efforts werestill underway in April 2011 when the second indictment was filed, charging defendantwith violating the order of protection that had been imposed due to the crimes charged inthe first indictment. Substitute counsel was appointed within a few days thereafter,defendant was arraigned on the second indictment and the People again declaredreadiness. Less than two months later, Stokes died from causes unrelated to defendant'sactions.
Defendant contends that he was prejudiced by Stokes' death, claiming that she wouldhave testified that he struck her accidentally. However, even assuming that she wouldhave so testified, nothing in the record suggests that a trial could possibly have beenscheduled in the brief period between the second indictment and her death. Thus,defendant failed to demonstrate a relationship between the trial date and any resultingdisadvantage. As the delay was partially caused by defendant's actions and the chargesagainst him were serious, we find no constitutional violation (see People v Irvis, 90 AD3d1302, 1303-1304 [2011], lv denied 19 NY3d 962 [2012]; People v Morris, 25 AD3d915, 916-917 [2006], lv denied 6 NY3d 851 [2006]; People v Alger, 23 AD3d706, 706-707 [2005], lv denied 6 NY3d 845 [2006]).
Defendant's right to confront witnesses pursuant to Crawford v Washington(541 US 36 [2004]) was not violated when County Court allowed a police officer whoresponded to the 911 call to testify about statements made by Stokes, and then permittedthe People to play a police video depicting the officer's encounter with Stokes. Theofficer testified that Stokes said that she had been hit in the head with a bat, described herassailant, and said that he was in a nearby community center. The officer further testifiedthat police then began looking for defendant. The video reveals that the officerencountered Stokes immediately upon arriving at the scene. She was bleeding profuselyfrom her head and complaining of dizziness. The officer asked Stokes about herassailant's location, description and name, where the attack had occurred, and whetherthere were other victims, promptly relaying her answers to other police officers andemergency medical personnel who were dispatched to locate and assist Moore andpursue defendant. After the first few minutes, the officer asked no further questionsabout the incident, concentrating instead on attempting to calm Stokes as she becameincreasingly agitated and [*3]apprehensive about, amongother things, the fact that defendant had not been found.[FN2]
County Court correctly determined that the statements by Stokes were admissible asexcited utterances (see People v Caviness, 38 NY2d 227, 230-231 [1975]; People v Rogers, 94 AD3d1246, 1248-1249 [2012], lv denied 19 NY3d 977 [2012]). Further, we findno constitutional violation. The video reveals that the officer's primary purpose inquestioning Stokes was "to enable the police to meet an ongoing emergency andapprehend the perpetrator, not to provide evidence for later prosecution," andCrawford does not preclude such nontestimonial statements (People v Shaver, 86 AD3d800, 802 [2011], lv denied 18 NY3d 962 [2012]; see Davis vWashington, 547 US 813, 822 [2006]; People v Bradley, 8 NY3d 124, 127-128 [2006]; People v Kenyon, 108 AD3d933, 937 [2013], lv denied 21 NY3d 1075 [2013]; People v Hines, 39 AD3d968, 970 [2007], lv denied 9 NY3d 876 [2007]).
We are unpersuaded by defendant's contention that County Court erred in itsMolineux/Sandoval ruling admitting evidence of defendant's January 2010conviction for assault in the third degree and a 2008 temporary order of protection infavor of Stokes. Given defendant's claim that he struck Stokes accidentally with thebat—as well as his tearful trial testimony that "I never did anything like that beforeI had a fight with anybody . . . I never could do that"—the evidencewas admissible to show the absence of mistake or accident (see People v Henson,33 NY2d 63, 72 [1973]; Peoplev Wright, 81 AD3d 1161, 1162 [2011], lv denied 17 NY3d 803 [2011];People v Barreto, 64 AD3d1046, 1049 [2009], lv denied 13 NY3d 834 [2009]). The court properlybalanced the need for the evidence and its probative value against any potential delay,prejudice or surprise, and gave appropriate limiting instructions (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Wilkinson, 71 AD3d249, 254 [2010]).
As part of its Molineux ruling, County Court also permitted the People toestablish that defendant had been convicted in 2009 of criminal contempt in the seconddegree for violating the 2008 temporary order of protection. On appeal, defendant doesnot directly challenge this aspect of the Molineux ruling. Instead, he argues thatCounty Court improperly deprived him of the opportunity to admit thisconviction—which also formed the basis for raising the contempt charge in thesecond indictment from a class A misdemeanor to a class E felony—outside thepresence of the jury (see CPL 200.60 [3]; Penal Law §§ 215.50,215.51 [c]). In this regard, County Court reasoned that, as the jury would learn of theconviction pursuant to the Molineux ruling, allowing defendant to admit itoutside the presence of the jury would serve no purpose. The argument is unpreservedfor appellate review, as defense counsel consented to this determination (see People v Westcott, 84AD3d 1510, 1513 [2011]). In any event, we would have found no error, as thepurpose of the statutory procedure—to protect defendants from potentialprejudice—is not implicated where, as here, the jury learns of the prior convictionpursuant to a separate determination that any such prejudice is outweighed by theconviction's probative value (compare People v Anderson, 89 AD3d 1161, 1162-1163[2011]).
Defendant next contends that County Court erred in denying his application to admitthree written statements in which Stokes repudiated previous allegations that defendantstruck [*4]her intentionally. While we disagree withdefendant's claim that the notarization of these extrajudicialstatements—apparently prepared at defendant's instigation—providedsufficient "indicia of reliability" to require their admission for due process reasons(People v Robinson, 89 NY2d 648, 657 [1997]; compare People v Richard, 30AD3d 750, 754 [2006], lv denied 7 NY3d 869 [2006]), there is merit to hisargument that, since the People were permitted to introduce evidence of the statementsthat Stokes made to police, he should have been permitted to use the letters to impeachher credibility. Hearsay declarants may generally be impeached by the same methods thatwould have been available had they testified at trial, and the prior inconsistent statementof an unavailable declarant may be used for this purpose without establishing the usualfoundation where, as here, there was no prior opportunity for cross-examination (seePeople v Canady, 186 AD2d 749, 749-750 [1992], lv denied 81 NY2d 786[1993]; People v Conde, 16 AD2d 327, 331 [1962]; Jerome Prince, Richardsonon Evidence § 8-111 [Farrell 11th ed]). Nevertheless, upon review of the record asa whole—including defendant's multiple inconsistent explanations of events, theinconsistency of the physical evidence with his claim of accident, and the evidence of hislongstanding tumultuous relationship with Stokes—we find that there wasoverwhelming evidence of defendant's guilt and no significant probability that he wouldhave been acquitted if the letters had been admitted. Accordingly, this error was harmless(see People v Arafet, 13NY3d 460, 468 [2009]; People v Rivera, 70 AD3d 1177, 1181-1182 [2010], lvdenied 14 NY3d 891 [2010], 15 NY3d 855 [2010]).
Contrary to defendant's claim, County Court properly refused his request to give thejury a justification charge with respect to the crimes against Stokes. Defendant did nottestify that he struck Stokes in self-defense, but instead stated that he did so accidentallywhile defending himself against Moore. He testified unequivocally that he did not argueor fight with Stokes. Even in his previous accounts of events—such as hisstatement to police that he hit Moore because of a robbery attempt, and that Stokes then"tried to run out and I hit her too"—he made no claim that he acted against Stokesin self-defense. As no reasonable view of the evidence established a justification defense,defendant was not entitled to the charge (see People v Grady, 40 AD3d 1368, 1371 [2007], lvdenied 9 NY3d 923 [2007]; People v Siler, 288 AD2d 625, 628 [2001],lv denied 97 NY2d 709 [2002]).
By failing to object, defendant did not preserve his claim that County Courtimproperly assumed the role of an advocate by questioning witnesses excessively duringthe trial (see People v Charleston, 56 NY2d 886, 887-888 [1982]). In any event,as the questioning was limited to clarification of confusing testimony and did not favoreither party, we would not have found that defendant was deprived of a fair trial (see People v Lupo, 92 AD3d1136, 1138 [2012]; Peoplev Lozada, 35 AD3d 969, 970 [2006], lv denied 8 NY3d 947 [2007]).Finally, defendant claims that a recording of his telephone call to Stokes from jail shouldnot have been admitted as it was improperly authenticated. Contrary to the People'sclaim, defendant preserved this argument with a sufficiently specific objection;nevertheless, it lacks merit. A Sheriff's Department employee testified that all outgoinginmate calls from the jail were recorded and that there was no way to alter or tamper withthe recordings. Little—the roommate who summoned 911—testified thatshe was familiar with Stokes' voice and recognized it on the recording, an inmate whoassisted defendant in placing the call testified that he did so, and defendant himselfadmitted that he made the call and that the voices on the recording were those of Stokesand himself. Accordingly, the recording was properly authenticated (see People v Galunas, 107AD3d 1034, 1034-1035 [2013]; People v Heard, 92 AD3d 1142, 1144-1145 [2012], lvdenied 18 NY3d 994 [2012]; People v Ebron, 90 AD3d 1243, 1245 [2011], lvdenied 19 NY3d 863 [2012]).[*5]
Peters, P.J., Stein and McCarthy, JJ., concur.Ordered that the judgment is affirmed.
Footnote 1: Defendant does notclaim that any statutory speedy trial violation occurred (see CPL 30.30 [1] [a]).
Footnote 2: Authorities at thecommunity center where Stokes said that defendant had gone apparently refused topermit police officers to enter in search of him.