| People v Ramsaran |
| 2017 NY Slip Op 07163 [154 AD3d 1051] |
| October 12, 2017 |
| Appellate Division, Third Department |
[*1](October 12, 2017)
| The People of the State of New York, Respondent, v Ganesh R.Ramsaran, Appellant. |
Cheryl Coleman, Albany, for appellant.
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Mulvey, J. Appeal (upon remittal from the Court of Appeals) from a judgment of the CountyCourt of Chenango County (Revoir Jr., J.), rendered December 1, 2014, upon a verdictconvicting defendant of the crime of murder in the second degree.
Following a jury trial, defendant was convicted of the intentional second degree murder ofhis wife, Jennifer Ramsaran (hereinafter the victim), and sentenced to 25 years to life in prison.On appeal, this Court rejected defendant's challenges to the legal sufficiency and weight of theevidence supporting the jury's verdict, but concluded that defendant had been deprived of theeffective assistance of counsel based upon defense counsel's failure, among other things, toobject to the prosecutor's summation, which we found had mischaracterized the DNA evidence(141 AD3d 865 [2016]). The Court of Appeals thereafter reversed, holding that defendant hadnot been deprived of meaningful representation (29 NY3d 1070 [2017]). The Court of Appealsremitted the case to this Court "for consideration of issues raised but not determined on appeal"(id. at 1071). We have considered the remaining issues raised by defendant on appeal,only some of which warrant discussion. Given our conclusion that none of the claims requiresreversing the judgment of conviction, we affirm.
Initially, we address defendant's claim that evidentiary errors occurred. We find no merit indefendant's contention that County Court deprived him of his Sixth Amendment right to confrontwitnesses when it sustained the People's objection to his cross-examination of Eileen Sayles, thevictim's close friend with whom defendant had been having a 10-month affair. On [*2]direct examination, Sayles testified that defendant loved her, theyhad sexual relations regularly and they had discussed divorcing their spouses, moving in togetherand raising their children as a family. This testimony was consistent with the People's theory,supported by ample proof at trial, that defendant was consumed with his desire to be with Sayles,and that his motive in killing the victim was to avoid the costs of divorce and pursue hisrelationship with Sayles, whom he considered to be his "soul mate." On cross-examination ofSayles, the defense attempted to elicit from her that defendant had stated his intent to take care ofthe victim financially after their divorce. This statement was inadmissible hearsay that did notconstitute a declaration against defendant's penal interest, as it was not contrary to his interestand he was available to testify (see People v Settles, 46 NY2d 154, 167 [1978]; People v Sheppard, 119 AD3d986, 989-990 [2014], lv denied 22 NY3d 1203 [2014]; People v Valderrama,285 AD2d 902, 904 [2001], lv denied 97 NY2d 659 [2001]; see also People v DiPippo, 27 NY3d127, 136-137 [2016]). Further, defendant did not identify—and the record does notreflect—any "supportive evidence [that] . . . establishe[d] a reasonablepossibility that the statement might be true" (People v Soto, 26 NY3d 455, 462 [2015] [internal quotation marks,brackets and citation omitted]). Contrary to defendant's claims, defense counsel did not seek toelicit this self-serving statement as an admission for the nonhearsay purpose of establishingdefendant's state of mind; rather, counsel sought to introduce it in defendant's favor to prove thetruth of the matter asserted and to refute the evidence of his motive. We discern no abuse ofdiscretion or denial of defendant's right to cross-examine witnesses in the court's preclusion ofthis gratuitous testimony (see People v Reynoso, 73 NY2d 816, 819 [1988]; People v Soriano, 121 AD3d 1419,1422 [2014]; People v Pearson, 28AD3d 587, 587-588 [2006], lv denied 7 NY3d 793 [2006]; see also People v Hayes, 17 NY3d46, 53 [2011], cert denied 565 US 1095 [2011]).
Defendant's claim that the People failed to disclose Brady material was not preservedby an objection at trial or by a request for a limiting instruction and, in any event, no violationoccurred (see Brady v Maryland, 373 US 83 [1963]). The defense elicited oncross-examination of Sayles that defendant had never hurt her or the victim in thepast—matters that went beyond the scope of the direct examination.[FN*] On redirect examination, thePeople rebutted this by establishing that, after the victim went missing, defendant had grabbedSayles' arm and dragged her into his house when she tried to leave. This information was notexculpatory and, to the extent that it was impeachment material, defendant opened the door to itand made Sayles his witness; thus, the People were entitled to rebut and impeach her testimony(see People v Garrett, 23 NY3d878, 884-886 [2014]; People vMontgomery, 22 AD3d 960, 962 [2005]). While a limiting instruction should have beengiven (see People v Wlasiuk, 90AD3d 1405, 1413 [2011]), the testimony was circumscribed, and there is no "reasonableprobability" that, had the impeachment material been timely disclosed, the verdict would havebeen different (People v Garrett, 23 NY3d at 891 [internal quotation marks and citationsomitted]).
Next, we perceive no abuse of discretion in County Court's ruling precluding defense counselfrom questioning the victim's online friend about the victim's alleged statements that she wasbeing stalked by someone online. This ruling was correct and did not infringe on defendant'sright to present a defense (see People vPowell, 27 NY3d 523, 526, 531 [2016]). While defense counsel, in part, pursued thetheory at trial that the police had not investigated other leads, he conceded during the offer ofproof on this matter that he was not trying to elicit this hearsay to [*3]show that the alleged "stalker might have killed [the victim],"undermining any claim that it constituted third-party culpability evidence (see id. at531-532; People v Primo, 96 NY2d 351, 356-357 [2001]). Moreover, the profferedtestimony was "so remote and speculative that it d[id] not sufficiently connect the third party tothe crime" (People v Powell, 27 NY3d at 531; compare People v DiPippo, 27NY3d at 135-138; People v Gamble,18 NY3d 386, 398 [2012]). Nor was the testimony admissible to prove the victim's state ofmind at some undefined time in the past, as the defense failed to establish its relevance and, infact, it was only relevant if offered to prove the truth of the matter asserted—that thevictim was being stalked—which rendered it inadmissible hearsay (see People vReynoso, 73 NY2d at 819; People vGoodluck, 117 AD3d 653, 654 [2014], lv denied 23 NY3d 1062 [2014]).
Likewise, County Court properly exercised its discretion in permitting photographs of thevictim prior to her murder. While photographs of victims when alive are "generally inadmissibleat trial," they may be admitted when they are "relevant to a material fact to be proved at trial" (People v Nelson, 27 NY3d 361,370 [2016], cert denied 580 US &mdash, 137 S Ct 175 [2016]; see People vStevens, 76 NY2d 833, 835 [1990]). The photographs depicting the victim were relevant toand probative of the People's central theory that defendant disapproved of the victim's appearanceand was motivated to kill her, in part, by his desire to be with Sayles, whose appearance heperceived as more attractive (compare People v Stevens, 76 NY2d at 836; People v Drouin, 115 AD3d 1153,1156 [2014], lv denied 23 NY3d 1019 [2014]).
Defendant also challenges the admission of testimony and evidence regarding photographs ofhimself and either Sayles or the victim, jailhouse phone calls between himself and Sayles, andFacebook conversations between himself and Sayles. He contends that this evidence, much ofwhich was sexually explicit in nature, was improperly admitted to prove his criminal propensityand bad character in violation of Molineux (see People v Leonard, 29 NY3d 1, 6-7 [2017]; People v Leeson, 12 NY3d 823,826-827 [2009]). Defendant objected to some but not all of this evidence, which did not concernuncharged crimes. As a general rule, "evidence of uncharged crimes or prior bad acts may beadmitted where they fall within the recognized Molineux exceptions—motive,intent, absence of mistake, common plan or scheme and identity—or where such proof isinextricably interwoven with the charged crimes, provides necessary background or completes awitness's narrative" (People vAnthony, 152 AD3d 1048, 1051 [2017] [internal quotation marks and citationsomitted]). Assuming that such evidence reflected defendant's immoral character or prior bad actsunder Molineux, County Court properly found that it was relevant to and highly probativeof defendant's obsession with Sayles and being with her, as well as his preoccupation andcompulsion with sex and his motive to kill the victim (see People v Babcock, 152 AD3d 962, 964 [2017]; People v Sorrell, 108 AD3d 787,791 [2013], lv denied 23 NY3d 1025 [2014]). It also provided the necessary backgroundinformation regarding the nature of defendant's relationship with the victim and Sayles, and hisdisapproval of the victim, and "placed the charged conduct in context" (People v Dorm, 12 NY3d 16, 19[2009]).
Where, as here, "there is a proper nonpropensity purpose, the decision whether to admit suchevidence rests upon the trial court's discretionary balancing of probative value and unfairprejudice" (People v Leeson, 12 NY3d at 826-827 [internal quotation marks, brackets,ellipsis and citation omitted]; see People v Babcock, 152 AD3d at 964). County Courtengaged in the required "case-specific discretionary balancing of probity versus prejudice" (People v Inman, 151 AD3d 1283,1284 [2017] [internal quotation marks and citations omitted]). The court excluded or limitedmuch of the evidence or only permitted it to be generally described in testimony without showingit to the jury, limited to five the number of jailhouse calls that were played for the jury andexcluded a video of defendant's sexual activity with the victim as unduly prejudicial. We find noabuse of discretion in the court's conclusion that the probative value of the admitted [*4]evidence outweighed its prejudicial effect, and note that the court"mitigated any undue prejudice by providing limiting instructions" on several occasions(People v Anthony, 152 AD3d at 1051 [internal quotation marks and citation omitted]).Any error in this regard was harmless (see People v Goodrell, 130 AD3d 1502, 1503 [2015]).
Finally, defendant argues that the medical examiner should not have been permitted to offerhis medical opinion that the manner of death was homicide. Defense counsel did not object tothis testimony, rendering this claim unpreserved for our review (see CPL 470.05 [2]). Inany event, "[t]he guiding principle is that expert opinion is proper when it would help to clarifyan issue calling for professional or technical knowledge, possessed by the expert and beyond theken of the typical juror," and it applies to testimony regarding the ultimate issue before the jury(People v Rivers, 18 NY3d 222,228 [2011] [internal quotation marks and citation omitted]; see Hurrell-Harring v State of New York, 119 AD3d 1052, 1053[2014]). The medical examiner explained that the cause of the victim's death could not bedetermined, although the condition of her body was consistent with death occurring on December11, 2012, the day that she disappeared. He offered his medical opinion as to the manner of death,after ruling out all other possible explanations for how the death came about, which he explainedwas based upon his observations during the autopsy and the condition and location of the victim'sbody. As we find no abuse of discretion in permitting this testimony, we discern no basis uponwhich to take corrective action in the interest of justice (see People v Nicholson, 26 NY3d 813, 828 [2016]; People v Campanella, 100 AD3d1420, 1420-1421 [2012], lv denied 20 NY3d 1060 [2013]; People v Odell, 26 AD3d 527, 529[2006], lv denied 7 NY3d 760 [2006]; compare People v Every, 146 AD3d 1157, 1166 [2017],affd 29 NY3d 1103 [2017]). We have examined defendant's remaining contentions anddetermined that none has merit.
Peters, P.J., Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:On direct examination, Saylestestified that defendant had, on occasion, become angry and verbally abusive to her and to thevictim. She was not asked if he had ever been physically abusive.