| People v Porco |
| 2010 NY Slip Op 01989 [71 AD3d 791] |
| March 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Porco, Appellant. |
—[*1] P. David Soares, District Attorney, Albany, N.Y. (Christopher D. Horn and Brett M.Knowles of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Albany County (Berry, J.),rendered December 12, 2006, convicting him of murder in the second degree and attemptedmurder in the second degree, upon a jury verdict, and imposing sentence. By decision and orderof the Appellate Division, Third Department, entered May 10, 2007, this appeal was transferredto this Court for hearing and determination (see NY Const, art VI, § 4 [i]).
Ordered that the judgment is affirmed.
The defendant was convicted of murdering his father and attempting to murder his motherwith an axe while the victims were at home asleep in their bed.
The defendant contends on appeal that the trial court erred in permitting a detective to testifythat the defendant's mother, while being treated by paramedics at her home after the attack,nodded affirmatively in response to the detective's question as to whether the defendant attackedher. Specifically, the defendant argues that the trial court erred in admitting evidence of themother's gesture as an excited utterance under the recognized common-law exception to the ruleagainst hearsay and, relying upon Crawford v Washington (541 US 36 [2004]) andDavis v Washington (547 US 813 [2006]), the defendant also contends that the trialcourt's ruling in this regard deprived him of his Sixth Amendment right of confrontation.
Here, the affirmative nod was not made spontaneously, but in response to probing, directquestions by the detective and, as such, constituted testimonial hearsay subject to exclusion fromevidence in accordance with Crawford (see People v Ballerstein, 52 AD3d 1192 [2008]). Although thedefendant's constitutional right of confrontation was not violated here, since his mother, unlikethe declarant in Crawford, was available to testify at trial, the defendant correctlycontends that the detective's testimony concerning the mother's gesture was not admissible on theground that the nod constituted an excited utterance (see People v Vasquez, 88 NY2d561 [1996]). In order for a statement to qualify as an excited utterance, it must be "made underthe stress of excitement caused by an external event, and not the product of studied reflectionand possible fabrication" (People v Johnson, 1 NY3d [*2]302, 306 [2003]), with the utterance being "spontaneous andtrustworthy" (id., quoting People v Edwards, 47 NY2d 493, 497 [1979]). In lightof the lapse of time between the attack on the defendant's mother, and her responses to thedetective's questions, the nod in question cannot be deemed an excited utterance.
Although the detective should not have been permitted to testify that the defendant's motheridentified the defendant, any error in admitting that evidence was harmless in light of theoverwhelming evidence of the defendant's guilt without reference to the error and the absence ofany substantial probability that the error might have contributed to his conviction (see Peoplev Crimmins, 36 NY2d 230 [1975]; see also People v Leon, 209 AD2d 342, 343[1994]).
We reject the defendant's contention that he was deprived of a fair trial by the trial court'sruling that certain limited, uncharged crime evidence could be introduced to prove his identity asthe perpetrator of the crimes of which he was convicted here. "[A]lthough evidence of unchargedcrimes is inadmissible to show a defendant's criminal predisposition (People v Allweiss,48 NY2d 40; People v Vails, 43 NY2d 364; People v Fiore, 34 NY2d 81;People v Agront, 104 AD2d 821), if the same is offered for another relevant purpose(such as to establish identity of the perpetrator of the crime being tried), it will generally beallowed (People v Jackson, 39 NY2d 64; People v Condon, 26 NY2d 139;People v Molineux, 168 NY 264)" (People v Powell, 107 AD2d 718, 719[1985]).
In this case, the defendant's identity as the perpetrator was at issue, and the proof that thedefendant engaged in a pattern of staging crimes at his parents' home to make it appear as thoughthere had been break-ins, was sufficiently unique to make the uncharged crime evidence highlyprobative on that issue (see People v Beam, 57 NY2d 241, 253 [1982]; People vAllweiss, 48 NY2d 40, 47-48 [1979]). Further, it is evident that the trial court properlybalanced the probative value of this limited evidence against the potential for prejudice, as mostof the uncharged crime evidence which the People sought to introduce was precluded fromadmission into evidence in the first instance, and the court limited the reference to the oneuncharged crime that was admitted into evidence and gave limiting instructions to the jury to theeffect that the evidence could only be considered by them for the purpose of determiningwhether the People had established a modus operandi.
The defendant's argument that the trial court erred in failing to conduct a hearing todetermine whether certain evidence was inadmissible as fruit of the poisonous tree, on theground that it was derived from the defendant's suppressed statement to police, was preserved forappellate review (see CPL 470.05 [2]). However, we are not persuaded that such ahearing was required. The defendant did not confess in the suppressed statement, and lawenforcement officials conducted a massive, independent investigation of the crimes. All of theevidence which the defendant claims was derived from his suppressed statement was collateral tothe statement itself, and the People established that, as to the identification of certain witnessesallegedly derived from the suppressed statement, any taint had dissipated (see United States vCeccolini, 435 US 268 [1978]; People v Mendez, 28 NY2d 94 [1971], certdenied 404 US 911 [1971]) and, as to other evidence, that it was legitimately obtained in thecourse of the police investigation, independent of the suppressed statement (see Wong Sun vUnited States, 371 US 471, 488 [1963]; Silverthorne Lumber Co. v United States,251 US 385, 392 [1920]; People v Arnau, 58 NY2d 27, 37 [1982]; People v Richardson, 9 AD3d 783[2004]; People v Goodwin, 286 AD2d 935 [2001]).
Finally, we reject the defendant's contention that he was deprived of a fair trial due toprosecutorial misconduct. While one question asked by the prosecutor during redirectexamination of a detective, and some of the prosecutor's comments in summation, wereimproper, the prosecutor's misstatements were not so egregious or pervasive as to deprive thedefendant of a fair trial, and, in the instances where the defendant objected, the trial court tookprompt and appropriate curative action (see People v Diotte, 63 AD3d 1281 [2009]; People v Gardner, 27 AD3d 482[2006]; cf. People v Riback, 13NY3d 416 [2009]; People v Calabria, 94 NY2d 519 [2000]). Skelos, J.P., Dickerson,Eng and Sgroi, JJ., concur.