| People v Monk |
| 2008 NY Slip Op 10400 [57 AD3d 1497] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Henry Monk,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), renderedSeptember 6, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the firstdegree, burglary in the first degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murderin the first degree (Penal Law § 125.27 [1] [a] [vii]), burglary in the first degree (§ 140.30[3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to thecontention of defendant, Supreme Court properly refused to admit his medical records in evidence. It iswell settled that "[t]rial courts are accorded wide discretion in making evidentiary rulings and, absent anabuse of discretion, those rulings should not be disturbed on appeal" (People v Carroll, 95NY2d 375, 385 [2000]). Here, the court determined that defendant's medical records were relevantinsofar as the theory of the defense was that defendant was physically incapable of entering the victim'shome by climbing on top of a garbage tote. Nevertheless, the court did not abuse its discretion inrefusing to admit those medical records in evidence without additional expert medical testimonyinasmuch as, without such explanatory testimony, the jury would necessarily engage in impermissiblespeculation whether defendant's prior back surgery and subsequent treatment would have made itdifficult, if not impossible, for defendant to enter the victim's home in the manner alleged by the People(see People v Young, 295 AD2d 631, 632 [2002], lv denied 99 NY2d 541 [2002];cf. People v Smith, 195 AD2d 265, 266 [1993]). Defendant failed to preserve for our reviewhis further contention that he was denied a fair trial by prosecutorial misconduct (see People v Cox, 21 AD3d 1361,1363-1364 [2005], lv denied 6 NY3d 753 [2005]; People v Crawford, 299 AD2d848 [2002], lv denied 99 NY2d 581, 653 [2003]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Contrary to defendant's contention, "[t]he court's Sandoval compromise . . .reflects a proper exercise of the court's discretion" (People v Thomas, 305 AD2d 1099[2003], lv denied 100 NY2d 600 [2003]; see People v Martinez, 294 AD2d 933,935 [2002], lv denied 98 NY2d 678 [2002]; People v Brockway, 277 [*2]AD2d 482, 485 [2000]). We further conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The DNA evidence placed defendant in the victim's kitchen, and the additional evidencepresented by the People established that defendant could not be eliminated as the contributor of theDNA found on the stockings used to tie the victim's hand to the bed and the DNA found underneaththe victim's fingernails. It was within the province of the jury to discredit the explanations of defendantfor the presence of his blood and DNA at the crime scene (see generally Bleakley, 69 NY2dat 495). We note in particular that defendant gave differing accounts with respect to when he was lastat the victim's home and the manner in which he had cut himself. In addition, the testimony of thejailhouse informant was not incredible as a matter of law (see People v Pace, 305 AD2d 984,985 [2003], lv denied 100 NY2d 585 [2003]; People v Batista, 235 AD2d 631,631-632 [1997], lv denied 89 NY2d 1088 [1997]). We conclude that "the jury was justified infinding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]) based, inter alia, on theconflicting evidence presented at trial with respect to defendant's ability to walk unaided and thetestimony that the cigarette butts with another person's DNA were found 12 to 14 feet from the brokenwindow and thus were unrelated to the incident. Finally, the sentence is not unduly harsh or severe.Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.