| People v Green |
| 2007 NY Slip Op 07087 [43 AD3d 1279] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CorneliusGreen, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), renderedAugust 30, 2000. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, attempted murder in the second degree, burglary in the first degree (two counts),and attempted robbery in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]), attempted murderin the second degree (§§ 110.00, 125.25 [1] [intentional murder]), attempted robberyin the first degree (§§ 110.00, 160.15 [1]), and two counts of burglary in the firstdegree (§ 140.30 [1], [2]). In his statement to the police, defendant admitted that he andtwo others planned to rob a "crack house" and that, during the course of that attempted robbery,he shot and killed the woman who answered the door and injured one of his accomplices byshooting him in the face. The injured accomplice ran from the scene of the crime to his sister'shome, which was located on the same street as the crack house, and the accomplice told both hisniece and a police officer who responded to his sister's house that "Cornelius" shot him. ThePeople were unable to locate the accomplice to serve him with a material witness order, and theaccomplice therefore did not testify at trial.
Contrary to defendant's contention, County Court properly admitted the testimony of theaccomplice's niece and the police officer with respect to the out-of-court declarations of theaccomplice. Those declarations were admissible under the excited utterance exception to thehearsay rule (see People v McClary,21 AD3d 1427 [2005], lv denied 5 NY3d 884 [2005]; see generally People v Johnson, 1NY3d 302, 305-306 [2003]). Defendant failed to preserve for our review his contention thatthe testimony of those witnesses violated his constitutional right of confrontation (seeCPL 470.05 [2]; see generally US Const Sixth Amend). In any event, we concludethat the statements of the accomplice to the police officer were made during a police and medicalemergency and thus do not constitute testimony within the meaning of the Confrontation Clause(see People v [*2]Nieves-Andino, 9 NY3d 12, 14-15 [2007]; People v Bradley, 8 NY3d 124,127-128 [2006]). Although we agree with defendant that the statement of the accomplice to hisniece that "Cornelius" shot him constitutes testimony within the meaning of the ConfrontationClause, we conclude that the court's error in admitting that testimony is harmless beyond areasonable doubt. The remaining evidence of guilt is overwhelming and, in any event, thetestimony of the police officer with respect to that same statement was properly admitted. Wethus conclude that "there is no reasonable possibility that the error affected the jury's verdict" (People v Douglas, 4 NY3d 777,779 [2005]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).By failing to request a jury instruction on corroboration, defendant failed to preserve for ourreview his contention that the court erred in failing to instruct the jury with respect to thecorroboration requirements applicable to the declarations of the accomplice and defendant'sstatement to the police (see CPL 60.22 [1]; 60.50; People v Scott, 262 AD2d1021 [1999], lv denied 93 NY2d 1027 [1999]). In any event, although we agree withdefendant that the court erred in failing to instruct the jury with respect to the corroboration of hisown statement, the record establishes that there is the requisite corroborative evidence that thecrimes of which he was convicted were committed (see People v Chico, 90 NY2d 585,589-590 [1997]), and thus reversal on that ground is not required (see People v Rutledge,286 AD2d 962 [2001], lv denied 97 NY2d 687 [2001]). Inasmuch as defendant'saccomplice did not testify, we conclude that CPL 60.22 (1) is inapplicable (see People vTran, 178 AD2d 247 [1991], revd on other grounds 80 NY2d 170 [1992], reargdenied 81 NY2d 784 [1993]).
Contrary to defendant's further contention, the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant'sdetailed statement to the police supporting the elements of each crime is corroborated byevidence that those crimes were committed (see Chico, 90 NY2d at 589-590). Further,the verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at495). We reject defendant's contention that the court committed reversible error in admitting thetestimony of two police investigators with respect to defendant's statement. The determinationwhether evidence is material and relevant and is not unduly prejudicial is left to the sounddiscretion of the trial court (see generally People v Davis, 43 NY2d 17, 27 [1977],cert denied 435 US 998 [1978], rearg dismissed 61 NY2d 670 [1983]), and weconclude that the court did not abuse its discretion in admitting that testimony.
Defendant failed to preserve for our review his contention that he was denied a fair trialbased on prosecutorial misconduct during summation (see People v Dillon, 38 AD3d 1211 [2007]). In any event, weconclude that the prosecutor's remark with respect to the failure of the accomplice to testify wasfair comment on the defense summation, which emphasized the failure of the accomplice totestify, and we reject defendant's contention that the prosecutor's remarks on summationsuggested that the accomplice failed to testify because defendant had intimidated him. Finally,we reject the contention of defendant that he was denied effective assistance of counsel. Rather,the record establishes that, on the whole, "defense counsel represented his client diligently andvigorously" (People v Flores, 84 NY2d 184, 189 [1994]). Present—Scudder, P.J.,Martoche, Centra, Green and Pine, JJ.