| People v Martinez |
| 2018 NY Slip Op 07974 [166 AD3d 1292] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Emmanuel Martinez, Appellant. |
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedJuly 20, 2015 in Schenectady County, upon a verdict convicting defendant of the crimesof murder in the second degree, attempted murder in the second degree, criminalpossession of a weapon in the second degree (two counts), reckless endangerment in thefirst degree, attempted assault in the first degree and endangering the welfare of achild.
At approximately 9:45 p.m. on August 30, 2013, police responded to a shooting at ahome in the City of Schenectady, Schenectady County and discovered Luis Gomez witha nonfatal gunshot wound to his neck. Gomez's brother, Jose Torres, was discovered onthe front lawn with fatal gunshot wounds to his torso. Defendant was subsequentlyarrested in Brooklyn and indicted for the crimes of murder in the second degree,attempted murder in the second degree, criminal possession of a weapon in the seconddegree (two counts), reckless endangerment in the first degree, attempted assault in thefirst degree and endangering the welfare of a child. Defendant's first jury trial ended in amistrial. At the retrial, defendant was convicted as charged and Supreme Court sentencedhim to an aggregate prison term of 65 years to life and five years of postreleasesupervision. Defendant now appeals.
Defendant contends that the verdict was not legally sufficient and was against theweight of the evidence because the trial evidence did not establish that he was present atthe [*2]crime scene. Although defendant did not preservehis legal sufficiency argument because he did not renew his motion to dismiss at theclose of his proof (see People vKolupa, 13 NY3d 786, 787 [2009]), "we necessarily determine whether theelements of the crime[s] were proven beyond a reasonable doubt" as part of our weightof the evidence review (Peoplev Vanderhorst, 117 AD3d 1197, 1198 [2014], lv denied 24 NY3d 1089[2014]; see People vDanielson, 9 NY3d 342, 348-349 [2007]). When conducting such a review, wemust view all the credible evidence in a neutral light and determine, first, that an acquittalwould not have been unreasonable and, only if so, "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People vJemmott, 164 AD3d 953, 954-955 [2018] [internal quotation marks andcitations omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]).
At the trial, Gomez, who lived with his wife and three children, testified thatdefendant had been his neighbor for approximately a year. The evidence established that,while Gomez was incarcerated, his wife engaged in a brief sexual relationship withdefendant. On the day that Gomez was released from jail, he confronted defendant aboutthe affair and a street fight occurred during the afternoon involving defendant, Gomez,Torres and several others. The shooting occurred later that evening in Torres' backyard,where Gomez and his family and friends had gathered. Gomez, his wife, his twodaughters, his son and one daughter's boyfriend each testified that they knew defendantand identified him as the individual who walked down the driveway leading to Torres'backyard, where he shot Gomez and Torres.[FN*] A taxicab driver testified that he drovedefendant to a location near Torres' house on the evening of the shooting. The Peoplealso presented evidence that defendant's cell phone "pinged" near Torres' home andshowed the jury surveillance video taken on Torres' street the night of the shooting andnear the street fight scene the prior afternoon. Kevin Allen, who was in custody withdefendant, testified that he knew defendant because defendant had sold him drugs in thepast. According to Allen, while the two were in custody, defendant told him that he"blasted" Gomez and Torres.
In addition to presenting witnesses who testified that defendant and Allen never hadthe occasion to speak with one another while in custody, defendant testified on his ownbehalf. He detailed the nature of his relationship with Gomez and Gomez's wife and theextent and aftermath of the street fight. According to defendant, after he and Gomezexchanged blows, he returned to the home that he shared with his girlfriend and then,fearing further confrontation, took a cab to Nikkia Michaud's apartment. Defendanttestified that Michaud was an ex-girlfriend, he arrived at her apartment shortly after 9:00p.m., the two watched movies and he remained overnight. At some point during theevening, defendant called his father, and the next morning defendant's mother arrived atMichaud's house and drove defendant back to Brooklyn. Although a different verdictwas possible because the jury could have believed defendant's alibi testimony, when weweigh the evidence, view it in a neutral light and defer to the jury's credibilitydeterminations, we find that the verdict was supported by the weight of the evidence (see People v Davis, 155 AD3d1311, 1315-1317 [2017], lv denied 30 NY3d 1114 [2018]; People v Jackson, 100 AD3d1258, 1260-1261 [2012], lv denied 21 NY3d 1005 [2013]).
[*3] Defendant also argues that Supreme Court abused itsdiscretion by permitting officer Brandon Kietlinski to testify that Gomez identifieddefendant as the shooter. Although hearsay, "an out-of-court statement is properlyadmissible under the excited utterance exception when made under the stress ofexcitement caused by an external event, and not the product of studied reflection andpossible fabrication" (People vMcCauley, 162 AD3d 1307, 1309 [2018] [internal quotation marks, bracketsand citation omitted], lv denied 32 NY3d 939 [2018]). The basis for thisexception is that "under certain circumstances of physical shock, . . . [anexcited] utterance is made under the immediate and uncontrolled domination of thesenses, and during the brief period when considerations of self-interest could not havebeen brought fully to bear by reasoned reflection" and is, therefore, more trustworthy (People v Johnson, 1 NY3d302, 306 [2003] [internal quotation marks and citations omitted]; see People v Cummings, 31NY3d 204, 209 [2018]).
Kietlinski testified that he arrived at the scene within minutes after the shooting wasreported and rode with Gomez in an ambulance. According to Kietlinski, Gomez was"real upset," "sweating real bad" and "excited, in like a panic state" during theapproximately 15-minute ride to the hospital. Kietlinski recalled Gomez asking if he wasgoing to be okay and whether he was going to die. Once the emergency medicaltechnicians stabilized Gomez in the ambulance, Kietlinski asked Gomez if he knew whoshot him and Gomez responded that it was defendant. We reject defendant's argumentthat the statement was not an excited utterance because the statement was made inresponse to a question. Kietlinski's question could not have mitigated the stressassociated with a gunshot wound. In our view, Supreme Court properly ruled thatGomez's statement, made within, at most, 30 minutes after Gomez had been shot, whilehe was in pain and wondering whether he would survive, was an admissible excitedutterance (see People v Cotto, 92 NY2d 68, 79 [1998]; People v Brooks,71 NY2d 877, 878 [1988], lv dismissed 74 NY2d 806 [1989]; People vBrown, 70 NY2d 513, 520 [1987]).
Next, defendant contends that Supreme Court erred in permitting Allen to testify thathe knew defendant because he purchased drugs from him in the past. Generally,"evidence of a defendant's uncharged crimes or prior misconduct is not admissible if itcannot logically be connected to some specific material issue in the case, and tends onlyto demonstrate the defendant's propensity to commit the crime charged" (People v Cass, 18 NY3d553, 559 [2012]; see Peoplev Leonard, 29 NY3d 1, 6-7 [2017]). However, evidence of prior unchargedcrimes may be admissible where it "provide[s] . . . necessary backgroundinformation regarding the nature of [the] defendant's relationship with the victim. . . and place[s] the charged conduct in context" (People v Ramsaran, 154 AD3d1051, 1054 [2017] [internal quotation marks and citation omitted], lv denied30 NY3d 1063 [2017]). Prior to trial, the court ruled that the People could question Allenabout how he knew defendant, but not about the number of sales or the type of drugsinvolved. Allen testified that he first met defendant in July or August 2012 whendefendant brought "some drugs" to a girl that he was with and met him "five or six timesmore after that." We agree with Supreme Court that Allen's testimony that he knewdefendant through prior drug sales was admissible because it explained why defendantchose to confide in him (seePeople v Wells, 141 AD3d 1013, 1019-1020 [2016], lv denied 28 NY3d1189 [2017]). Defendant's argument that Supreme Court should not have allowed Allento testify about the number of times they met is not preserved for our review.
Finally, defendant maintains that Supreme Court erred in giving a missing witnesscharge with respect to his failure to call Michaud as a witness. Defendant furthercontends that the court erred in refusing to read Michaud's testimony from the first trialinto [*4]evidence pursuant to CPL 670.10. A missingwitness charge "allows a jury to draw an unfavorable inference based on a party's failureto call a witness who would normally be expected to support that party's version ofevents" (People v Savinon, 100 NY2d 192, 196 [2003]). "To warrant a missingwitness charge, the proponent of the charge must establish that (1) the witness'sknowledge is material to the trial; (2) the witness is expected to give noncumulativetestimony; (3) the witness is under the control of the party against whom the charge issought, so that the witness would be expected to testify in that party's favor; and (4) thewitness is available to that party" (People v Brown, 139 AD3d 1178, 1179 [2016] [internalquotation marks and citations omitted]; see People v Savinon, 100 NY2d at 197).Whether a witness can be expected to testify favorably is "the 'control' element, whichrequires the court to evaluate the relationship between the witness and the party to whomthe witness is expected to be faithful" (People v Savinon, 100 NY2d at 197).
The record shows that the police arrived at the scene of the shooting around 9:45p.m. As such, defendant's own testimony that he chose to seek refuge at Michaud'sapartment shortly after 9:00 p.m. demonstrated that Michaud was knowledgeable about amaterial issue and would be expected to provide noncumulative testimony as todefendant's whereabouts at the time of the incident (see People v Gonzalez, 68NY2d 424, 430 [1986]). Notably, the People called Michaud as a witness at the first trial,and subpoenaed her to testify and included her on their witness list for the retrial. ThePeople also met with Michaud prior to the retrial and determined not to call her as awitness since she warned that "no matter what question [the People] posed. . . her answer would be 'I don't know.' " For his part, defendantmaintains that he relied on the People's representation that Michaud would be called as awitness. He also contends that he only made the decision to testify during the trial, andthereafter exercised due diligence in trying to procure Michaud's testimony. ThatMichaud was identified as a potential witness for the People indicates that she may havebeen available to the People, but "the availability of a witness is a separate and distinctconsideration from that of control" (People v Keen, 94 NY2d 533, 540 [2000][internal quotation marks and citation omitted]). In our view, defendant's reliance on thePeople to call Michaud as a witness was misplaced for defendant was obligated toprepare his own defense.
Apart from Michaud's testimony in the first trial, it is fair to conclude fromdefendant's testimony that Michaud was under defendant's control as one couldreasonably expect her to validate his alibi testimony as to his presence at her apartment.The nuance here, however, is that she testified under oath at the first trial that she did notknow what time defendant actually arrived. The material issue, in our view, was notwhether defendant stayed at Michaud's apartment, but whether he arrived prior to 9:45p.m. As Michaud was uncertain on this key point, it is also difficult to characterize herexpected testimony at the retrial as favorable to defendant or, even for that matter, to thePeople. This is particularly so given her expressed position that she would answer anyquestion by asserting "I don't know"—a response that is actually consistent withher trial testimony. As such, we cannot say that the People met their burden ofestablishing either the knowledge or control elements of the missing witness charge,leading us to conclude that Supreme Court abused its discretion in reading the charge tothe jury (see People v Savinon, 100 NY2d at 197). We find no error, however, inthe court's denial of defendant's CPL 670.10 motion for his failure to show "duediligence in an effort to secure the attendance of a witness." Defendant was obligated toprepare his own defense and certainly had ample opportunity between trials to timelysubpoena Michaud. Notwithstanding the missing witness charge error, given theabundant evidence identifying defendant as the shooter, we conclude that there is nosignificant probability that the jury would have acquitted defendant if it [*5]had not been given this charge. We therefore deemSupreme Court's error harmless (see People v Crimmins, 36 NY2d 230, 242[1975]; People v Keen, 252 AD2d at 283).
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:At least two of thesechildren were under the age of 17 at the time of the incident for purposes of the charge ofendangering the welfare of a child (see Penal Law § 260.10 [1]).