| People v Owens |
| 2008 NY Slip Op 04158 [51 AD3d 1369] |
| May 2, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Owens,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered May 31, 2001. The judgment convicted defendant, upon a jury verdict, of murder in thefirst degree (two counts) and rape in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, of twocounts of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]), as well as twocounts of rape in the first degree (§ 130.35 [1]) with respect to a third victim. We rejectdefendant's contention that Supreme Court erred in refusing to direct the People to discloserecords pertaining to a "community attitude survey" that was commissioned by the People priorto jury selection and in refusing to order an inquiry into the possible racial bias in the juryselection process caused by the People's use of that survey. The record establishes that the surveywas completed several weeks prior to the commencement of jury selection and that none of theprospective jurors who ultimately were selected had participated in the survey. There is noindication in the record that any of the jurors were racially biased. Furthermore, we note that thecourt allowed unlimited voir dire on the issue of racial bias and that defendant employed his ownjury consultant, who was present throughout jury selection. We therefore conclude that defendantwas not denied his "right to a fair trial before an unbiased fact finder" (People v Arnold,96 NY2d 358, 362 [2001]).
We also reject defendant's contention that the court abused its discretion in refusing to severthe murder counts from the rape counts for trial (see CPL 200.20 [3]; see generallyPeople v Lane, 56 NY2d 1, 7 [1982]; People v Brown, 254 AD2d 781, 782 [1998],lv denied 92 NY2d 1029 [1998]). Rape in the first degree was the underlying felony foreach count of felony murder, and the People thus had to establish defendant's rape of the felonymurder victims. We therefore conclude that the counts were properly joined inasmuch as theoffenses are "similar in law" (CPL 200.20 [2] [c]; see generally Brown, 254 AD2d 781[1998], lv denied 92 NY2d 1029 [1998]), and we further conclude that defendant failedto establish good cause for severance (see CPL 200.20 [3]).
We reject defendant's further contention that the court erred in permitting the victim who[*2]was the subject of the two rape counts to testify that duringthe course of the rape defendant stated, "I did this before. Sooner or later I'm going to get caught.I might as well face my consequences." The statement was properly admitted as part of the resgestae of the rape counts (see People vLewis, 25 AD3d 824, 826 [2006], lv denied 7 NY3d 791 [2006]; People vAyala, 273 AD2d 40 [2000], lv denied 95 NY2d 863 [2000]; People vChavys, 263 AD2d 964, 965 [1999], lv denied 94 NY2d 821 [1999]), and itconstituted an admission with respect to those counts (see generally People v Geddes, 49 AD3d 1255 [2008]; People v Figgins, 48 AD3d 1042[2008]). We note that the court properly instructed the jury to consider the testimony only withrespect to the rape counts, and not the murder counts, thus limiting " 'the possibility of prejudice'" (People v Dozier, 32 AD3d1346, 1347 [2006], lv dismissed 8 NY3d 880 [2007]; see generally People v Dickson, 21AD3d 646, 647 [2005]).
Defendant failed to preserve for our review his contention that the court erred in permitting alay witness to give an expert opinion, i.e., that the bag that he observed defendant holdingcontained cocaine (see generally Peoplev Wade, 38 AD3d 1315, 1316 [2007], lv denied 8 NY3d 992 [2007]; Peoplev Highsmith, 254 AD2d 768, 769 [1998], lv denied 92 NY2d 983, 1033 [1998]). Inany event, the record establishes that the witness merely surmised that the bag contained cocaine.By suggesting during defendant's cross-examination of that witness that the witness hadidentified defendant in order to collect a $5,000 reward, defendant opened the door toquestioning of that witness and a police officer that the witness identified defendant six daysbefore he inquired about the reward (seegenerally People v James, 48 AD3d 698 [2008]; People v Seavy, 16 AD3d 1130 [2005]; People v Greene,306 AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]). Defendant failed topreserve for our review his further contention that the testimony of the officer improperlybolstered the testimony of the witness who identified defendant (see People v Mattis, 46 AD3d 929,931 [2007]; People v Gousse, 43AD3d 958 [2007]). In any event, any error in the admission of that testimony is harmless (see generally People v Grant, 7 NY3d421, 424 [2006]; People v Crimmins, 36 NY2d 230, 241-242 [1975]). We furtherconclude that, although defendant is correct that the People violated a ruling of the court byeliciting testimony from the witness and the officer that the witness had identified defendant in aphotographic array, the violation of that ruling also is harmless error (see generally Grant,7 NY3d at 424). We reject defendant's contention that the court erred in instructing the jury withrespect to the elements of intentional felony murder under Penal Law § 125.27 (1) (a) (vii).The court's instructions tracked the language contained in the Pattern Criminal Jury Instructions,and we conclude that the court "fairly instructed the jury on the correct principles of law to beapplied to the case" (People v Ladd, 89 NY2d 893, 896 [1996]).
We reject defendant's further contention that Penal Law § 125.27 (1) (a) (vii) isunconstitutionally underinclusive because certain predicate felonies enumerated in Penal Law§ 125.25 (3), felony murder in the second degree, are not included as predicate felonies forintentional felony murder in the first degree. The Court of Appeals has explained that one of thegoals of the Legislature in enacting section 125.27 (1) (a) (vii) was to limit the predicate feloniesfor intentional felony murder to "those that are potentially the most violent and involve asubstantial risk of physical injury" (People v Harris, 98 NY2d 452, 476 [2002]). We notethat the predicate felonies contained in Penal Law § 125.25 (3), identified by defendant ashaving been irrationally omitted from section 125.27 (1) (a) (vii), are offenses that have lesspotential for violence and physical injury than those included therein. We therefore conclude thatthe decision of the Legislature to exclude certain predicate felonies is rational and thus that PenalLaw § 125.27 (1) (a) (vii) is not unconstitutionally underinclusive (see generally Harris,98 NY2d at 477).
Finally, we note that the certificate of conviction contains clerical errors, i.e., it omits thesentence imposed for the first count of murder in the first degree, it incorrectly reflects thatdefendant was convicted of murder in the first degree pursuant to Penal Law § 125.27-1Grather than section 125.27 (1) (a) (vii), and it incorrectly reflects that defendant was sentenced toan [*3]indeterminate sentence of 25 years to life for each of thetwo rape counts, rather than a determinate sentence of 25 years. The certificate of convictionmust therefore be amended to correct those clerical errors (see generally People v Saxton, 32 AD3d 1286 [2006]).Present—Scudder, P.J., Smith, Centra, Peradotto and Pine, JJ.