| People v Carrenard |
| 2008 NY Slip Op 08503 [56 AD3d 486] |
| November 5, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PierreCarrenard, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered August 17, 2006, convicting him of murder in the second degree (two counts), burglaryin the second degree, assault in the third degree, and aggravated cruelty to animals, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with entering the home of his former girlfriend and her family inthe early morning hours of August 9, 2005, stabbing her mother to death, stabbing her niecePatricia in the face, and slaying the family dog. At the trial, the defendant, testifying on his ownbehalf, admitted that he killed his former girlfriend's mother and the family dog, and, with theknife still in his hand, pushed the decedent's niece Patricia to the side as he fled the scene. Attrial, he raised the affirmative defense of extreme emotional disturbance.
On appeal, the defendant claims that an audiotape of a telephone call to 911 by the decedent'sniece Natalie was improperly admitted in evidence. This argument is without merit. At the trial,defense counsel conceded that the audiotape fell within an exception to the hearsay rule on theground that it [*2]constituted an excited utterance. However,defense counsel claimed that it should not be admitted in evidence on the ground that itsprejudicial nature far outweighed any probative value, since identification was not in issue andthe substance of the audiotape was not relevant to the defendant's state of mind. The Peoplecontended that the audiotape established that the defendant had a knife. Under the circumstancesof this case, the trial court properly found that the audiotape was "probative with respect to whatoccurred" and therefore admissible in evidence. The defendant's contention that the court failedto provide a limiting instruction is unpreserved for appellate review (see CPL 470.05 [2];People v Medina, 37 AD3d240, 242 [2007]), and we decline to review it in the exercise of our interest of justicejurisdiction (see CPL 470.15 [6] [a]).
The defendant also challenges the trial court's ruling precluding him from admitting inevidence his videotaped statement to police, which he made upon his arrest in Florida 11 daysafter the crime, or eliciting testimony regarding the substance of that interview on the ground thatit constituted inadmissible hearsay. The People did not open the door to the admission inevidence of the videotaped statement (see People v Martinez, 186 AD2d 153 [1992]).Although portions of the videotaped statement were admitted in evidence to impeach hiscredibility as a trial witness, the defendant himself testified that some of his statements in thevideotape were not true. Moreover, the videotaped statement constituted inadmissible hearsayinsofar as it was offered to prove that the purported events that led to the defendant's allegedemotional disturbance had occurred (see People v Reynoso, 73 NY2d 816, 819 [1988];People v Oguendo, 305 AD2d 140, 141 [2003]; People v Deleon, 262 AD2d 421[1999]; see also People v Villanueva,35 AD3d 229, 230 [2006]). Accordingly, the trial court's ruling was proper. Florio, J.P.,Angiolillo, McCarthy and Chambers, JJ., concur.