| People v Bolling |
| 2008 NY Slip Op 02654 [49 AD3d 1330] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Thomas A.Bolling, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedOctober 18, 2002. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of murder in the second degree (Penal Law § 125.25 [2]) tomanslaughter in the second degree (§ 125.15 [1]) and vacating the sentence and asmodified the judgment is affirmed, and the matter is remitted to Monroe County Court forsentencing on the conviction of manslaughter in the second degree.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder insecond degree (Penal Law § 125.25 [2] [depraved indifference murder]), defendantcontends that the conviction is not supported by legally sufficient evidence. We agree. Viewingthe evidence in the light most favorable to the People, as we must (see People v Contes,60 NY2d 620, 621 [1983]), we conclude that the evidence is legally insufficient to prove beyonda reasonable doubt that defendant "acted with the culpable mental state of depraved indifference"(People v Swinton, 7 NY3d776, 777 [2006], rearg denied 7 NY3d 864 [2006]; see People v Feingold, 7 NY3d288, 294 [2006]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Theevidence does not warrant a finding that defendant's conduct demonstrated the "utter disregardfor the value of human life" necessary to support the conviction of depraved indifference murder(People v Suarez, 6 NY3d 202,214 [2005]). We therefore modify the judgment by reducing the conviction of murder in thesecond degree to manslaughter in the second degree (Penal Law § 125.15 [1]) and vacatingthe sentence (see CPL 470.15 [2] [a]), and we remit the matter to County Court forsentencing on the conviction of manslaughter in the second degree (see CPL 470.20 [4]).
None of defendant's remaining contentions warrants reversal or further modification of thejudgment. Contrary to the contention of defendant, the court properly admitted the testimony of apolice officer with respect to the out-of-court declaration of the victim under the excitedutterance exception to the hearsay rule (see People v McClary, 21 AD3d 1427, 1428 [2005], lvdenied 5 NY3d 884 [2005]; seegenerally People v Johnson, 1 NY3d 302, 305-306 [2003]). Defendant failed to preservefor our review his contention that the testimony of the police officer violated his constitutional[*2]right of confrontation (cf. People v Douglas, 4 NY3d 777, 779 [2005]; see generallyCrawford v Washington, 541 US 36 [2004]). In any event, we conclude that the statement ofthe victim to the police officer was made during the course of an "ongoing emergency" and thuswas not testimonial (People vNieves-Andino, 9 NY3d 12, 15 [2007]; see People v Bradley, 8 NY3d 124, 127-128 [2006]).
Contrary to the further contention of defendant, the court did not abuse its discretion indenying his motion to sever his trial from that of a codefendant. The "core of each defense [wasnot] in irreconcilable conflict with the other and . . . there [was no] significantdanger, as both defenses [were] portrayed to the trial court, that the conflict alone would lead thejury to infer defendant's guilt" (People v Mahboubian, 74 NY2d 174, 184 [1989]; seePeople v Cruz, 66 NY2d 61, 73-74 [1985], revd on other grounds 481 US 186[1987]). "[T]he fact that [the codefendant's attorney] stressed the relative weakness of the caseagainst his client did not present an irreconcilable conflict warranting severance" (People v Peisahkman, 29 AD3d352, 353 [2006]; cf. People v McGriff, 219 AD2d 829, 829-830 [1995]). Alsocontrary to defendant's contention, the codefendant's attorney did not act as a "second prosecutor"(People v Cardwell, 78 NY2d 996, 998 [1991]).
Defendant failed to preserve for our review his contention that the charge on the defense ofjustification should have preceded the reading of the elements of the crime (see generallyPeople v Robinson, 88 NY2d 1001, 1001-1002 [1996]). In any event, we note that this Courtpreviously determined that the justification charge at issue "was a correct statement of the lawwhen viewed in its entirety . . . and adequately conveyed to the jury 'the correctprinciples of law to be applied to the case' " (People v Bolling, 24 AD3d 1195, 1197 [2005], affd 7NY3d 874 [2006], quoting People v Ladd, 89 NY2d 893, 896 [1996]). Moreover, theCourt of Appeals determined in the appeal of the codefendant that no charge on the defense ofjustification was required and thus that any error in that charge was harmless (seeBolling, 7 NY3d at 875). Contrary to the further contentions of defendant, the court did noterr in failing to include the defense of justification on the verdict sheet (see People vDempsey, 177 AD2d 1018 [1991], lv denied 79 NY2d 946 [1992]), nor did the courterr in failing to include that defense in a supplemental instruction to the jury inasmuch as the jurydid not request a supplemental instruction on that defense (see People v Almodovar, 62NY2d 126, 131-132 [1984]; see also People v Guerrero-Rivera, 236 AD2d 837, 838[1997], lv denied 89 NY2d 1093 [1997]).
We reject the further contention of defendant that he was denied a fair trial by prosecutorialmisconduct on summation. The comments in question were fair response to the summation of thecodefendant's attorney (see People vSmith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). In anyevent, the court gave an immediate curative instruction following defendant's objection to thosecomments, and defendant did not object further or request a mistrial. Thus, the court's curativeinstruction "must be deemed to have corrected [any] error to the defendant's satisfaction"(People v Heide, 84 NY2d 943, 944 [1994]; see People v Williams, 28 AD3d 1059, 1061 [2006], affd 8NY3d 854 [2007]). In light of our decision, we do not address defendant's remaining contentions.Present—Scudder, P.J., Hurlbutt, Lunn, Pine and Gorski, JJ.