| People v McNeil |
| 2009 NY Slip Op 05163 [63 AD3d 551] |
| June 23, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joseph McNeil, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered December10, 2007, convicting defendant, after a jury trial, of robbery in the second degree, and sentencinghim, as a persistent violent felony offender, to a term of 18 years to life, unanimously affirmed.
The court properly declined to submit third-degree robbery as a lesser included offense,since there was no reasonable view of the evidence, viewed most favorably to defendant, that hetook the victim's property by means of some kind of force other than display of what appeared tobe a firearm (see e.g. People v Peaks, 297 AD2d 578 [2002], lv denied 99 NY2d562 [2002]). The victim testified that defendant simulated a firearm by gesturing with his hand inhis pocket and threatened to shoot her, thereby forcing her to accompany him to a nearby bankand withdraw funds from an automated teller machine. "The victim testified that defendant[simulated] a gun. No other evidence, viewed reasonably, contradicted that testimony"(People v James, 11 NY3d 886, 888 [2008]). In addition, although his testimony differedfrom that of the victim as to minor details, a bystander also saw defendant holding one hand inhis pocket. Furthermore, third-degree robbery requires the use of some type of force, and whilethere was evidence that defendant pushed the victim against a wall at the inception of theincident, there was nothing to suggest that he compelled her to go to a bank and withdraw moneyby any means other than simulating the presence of a firearm and placing her in reasonable fearof being shot.
The court properly exercised its discretion (see CPL 240.70 [1]) when it declined topreclude, on the ground of improper disclosure, the introduction of defendant's arrestphotograph, which depicted defendant wearing distinctive clothing that was relevant to the issueof identity. This photograph had been introduced at defendant's first trial. Shortly before theinstant retrial, the prosecutor advised defense counsel of his intention to introduce certainphotographs, not including the photograph at issue. The prosecutor then told the court andcounsel that, although he had been unable to locate some exhibits from the first trial, noadditional photographs would be used. Nevertheless, the prosecutor located the arrest photo andintroduced it. We conclude that there was neither bad faith nor prejudice. Defense counsel's[*2]conclusory and unsubstantiated assertion that, had he knownthis damaging evidence would be admitted, he would have not pursued a misidentificationdefense did not warrant preclusion of the photograph. There is no reason to believe that earlierdisclosure of the prosecutor's intent to use this photo would have changed the defense strategy.
Defendant's hearsay and Confrontation Clause claims regarding a communication between apolice officer and a nontestifying declarant are unpreserved (see e.g. People v Fleming,70 NY2d 947, 948 [1988]), and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits. Rather than being received for its truth,this evidence was received, with proper limiting instructions, for the legitimate, nonhearsaypurpose of completing the narrative of events and explaining police actions (see People vTosca, 98 NY2d 660 [2002]). Concur—Gonzalez, P.J., Sweeny, Buckley, Renwickand Freedman, JJ.