| People v Jones |
| 2007 NY Slip Op 07102 [43 AD3d 1296] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamar T.Jones, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January18, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, attempted murder in the second degree, assault in the first degree and criminal possessionof a weapon in the second 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 of,inter alia, murder in the second degree (Penal Law § 125.25 [1]) and attempted murder inthe second degree (§§ 110.00, 125.25 [1]). We reject the contention of defendantthat he was denied a fair trial when County Court allowed the People to present the testimony ofa witness concerning a prior physical altercation between defendant and that witness. Thealtercation occurred approximately 10 to 14 days prior to the commission of the crimes of whichhe ultimately was convicted, and testimony concerning that prior altercation was relevant inestablishing defendant's motive for shooting at a group of men that included the witness (see People v Trumbach, 31 AD3d1054, 1055 [2006]; People vWilliams, 27 AD3d 673 [2006], lv denied 7 NY3d 796 [2006]; see also People v James, 19 AD3d616 [2005], lv denied 5 NY3d 807 [2005]). Contrary to defendant's contention, theprobative value of the testimony concerning the prior altercation outweighed its prejudicial effect(see Trumbach, 31 AD3d at 1055; Williams, 27 AD3d 673 [2006]). Contrary todefendant's further contention, evidence of the prior altercation was also properly admitted toestablish defendant's identity (see People v Davis, 220 AD2d 682 [1995], lvdenied 87 NY2d 900 [1995]; cf.People v Austin, 13 AD3d 1196, 1197 [2004], lv denied 5 NY3d 785 [2005]).
We reject the further contention of defendant that he was denied a fair trial by the admissionin evidence of certain autopsy photographs of the murder victim. "The general rule is thatphotographs of the deceased are admissible if they tend to prove or disprove a disputed ormaterial issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprovesome other evidence offered or to be offered" (People v Pobliner, 32 NY2d 356, 369[1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US 905 [1974])."Photographic evidence should be excluded only if its sole purpose is to arouse the emotions ofthe jury and to prejudice the defendant" (id. at [*2]370).Here, the three photographs at issue were relevant to prove the identity of the murder victim, toshow an intent to kill and to corroborate the Medical Examiner's testimony concerning the causeof death, and thus the court did not abuse its discretion in admitting the photographs in evidence(see People v Law, 273 AD2d 897, 898 [2000], lv denied 95 NY2d 965 [2000];People v Brown, 254 AD2d 781, 782 [1998], lv denied 92 NY2d 1029 [1998]).
There also is no merit to the contention of defendant that his due process rights were violatedby an unduly suggestive pretrial photo array identification procedure. Generally, "[a]photographic array must contain only photographs of individuals who are of similar age andappearance to the suspect" (People vMeans, 35 AD3d 975, 975 [2006], lv denied 8 NY3d 948 [2007]). Here, theindividuals depicted were not all similar in appearance because the police had not yet focused ondefendant as a particular suspect, and the police showed the witness over 50 photographs beforehe identified defendant (see People v Burgos, 204 AD2d 344 [1994]; People vCampos, 197 AD2d 366 [1993], lv denied 82 NY2d 892 [1993]). Inasmuch as "[t]hecomposition and presentation of the photo array were such that there was no reasonablepossibility that the attention of the witness would be drawn to defendant as the suspect chosen bythe police," it cannot be said that the photo array was unduly suggestive (People v Sylvester, 32 AD3d1226, 1227 [2006], lv denied 7 NY3d 929 [2006]; see People v Ofield, 280AD2d 978, 979 [2001], lv denied 96 NY2d 832 [2001]; People v Brown, 169AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991]). Defendant further contends thatthe identification procedure was unduly suggestive because the witness saw the surnames of theindividuals depicted in the photographs. We reject that contention. The witness told the policethat he did not know the last name of the perpetrator, and thus defendant failed to meet hisburden of establishing that the attention of the witness was drawn to defendant's photographbecause he saw defendant's surname.
We also reject defendant's contention that the court failed to exercise its discretion at the timeof sentencing because, during a midtrial plea negotiation, the court stated that it would considerimposing concurrent sentences only if defendant accepted the plea agreement, and the courtultimately imposed a consecutive sentence for the count of attempted murder. "The determinationof an appropriate sentence requires the exercise of discretion after due consideration given to,among other things, the crime charged, the particular circumstances of the individual before thecourt and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence"(People v Farrar, 52 NY2d 302, 305 [1981]). Here, the record establishes that the courtwas aware of and considered all relevant factors, including those set forth in the presentencereport, and exercised its discretion in sentencing defendant (see People v Pedraza, 66NY2d 626 [1985]; People v Fordley, 55 AD2d 974 [1977]). Finally, the sentence is notunduly harsh or severe. Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.