| People v Wilson |
| 2010 NY Slip Op 01996 [71 AD3d 799] |
| March 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Wilson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,and Oded Zaluski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered January 17, 2007, convicting him of murder in the second degree, criminal possessionof a weapon in the second degree, and criminal possession of a weapon in the third degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the People's contention, the defendant preserved for appellate review hisargument that the trial court erred in denying his request that he be given a copy of the deceasedvictim's criminal record or, alternatively, his request that the court review the record in camera todetermine its admissibility (see CPL 470.05 [2]; People v Luperon, 85 NY2d 71,78 [1995]). This argument is, however, without merit.
"A criminal defendant asserting a justification defense is allowed to introduce evidence ofthe victim's prior acts of violence of which the defendant had knowledge, provided that the actsare reasonably related to the defense raised by the defendant" (People v Douglas, 29 AD3d 47,51 [2006]; see People v Lopez, 200 AD2d 767 [1994]). Here, the defendant failed todemonstrate that he was aware at the time of the shooting, that the decedent previously had beenarrested or convicted of violent crimes involving guns (see People v DiGuglielmo, 258AD2d 591 [1999]; see also People v Santiago, 211 AD2d 734 [1995]; People vPatterson, 184 AD2d 916, 919-920 [1992]). Accordingly, the trial court did not err indenying the defendant's request.
The trial court erred in admitting a photograph of the decedent into evidence since hisidentity was not at issue (see People v Stevens, 76 NY2d 833, 836 [1990]; cf. People v Daniels, 35 AD3d495, 497 [2006]; see also People v Donohue, 229 AD2d 396, 397-398 [1996]).However, the error was harmless, as there was overwhelming evidence of the defendant's guilteven if the photograph had not been admitted into evidence, and no significant probability thatthe error contributed to his convictions (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Thompson, 34AD3d 852 [2006]; cf. People v Heman, 198 AD2d 434, 435 [1993]).[*2]
The defendant's challenges to various summationremarks made by the prosecution are unpreserved for appellate review since defense counselfailed to object to these remarks at the time of trial (see CPL 470.05 [2]; People v Clarke, 65 AD3d 1055,1056 [2009]). In any event, all but one of the defendant's challenges are without merit, as thechallenged remarks either were responsive to defense counsel's summation or constituted faircomment on the evidence (id. at 1056). Although the prosecutor's suggestion that theeyewitnesses did not come forward immediately out of fear of retribution by the defendant wasimproper, since there was no evidence to support this statement (see People v Ashwal,39 NY2d 105, 109-110 [1976]), it did not deprive the defendant of a fair trial (see People vCrimmins, 38 NY2d 407, 412 [1975]; cf. People v Ellis, 94 AD2d 652, 653 [1983]).
The defendant failed to establish that he was deprived of the effective assistance of counsel(see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Satterfield, 66NY2d 796, 798-799 [1985]; cf. Peoplev Clarke, 66 AD3d 694 [2009]). Mastro, J.P., Dickerson, Belen and Roman, JJ., concur.