| People v Murphy |
| 2010 NY Slip Op 09411 [79 AD3d 1451] |
| December 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kevin Murphy,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 18, 2009, upon a verdict convicting defendant of the crime of manslaughter in thesecond degree.
On the night of April 29, 2006 and into the early morning hours of April 30, 2006, defendant wasengaged in two incidents with Joseph Jerome on Hudson Avenue in the City of Albany. Jerome'scompanions, Hector Perez and Rob Desantola, were also present. During the first encounter, defendantexchanged words with the group on the sidewalk outside his home. Perez then punched defendanttwice, knocking him down and injuring his lip. The second encounter occurred shortly thereafter whenJerome, Perez and Desantola returned to the area outside defendant's home. During that encounter,defendant fatally stabbed Jerome. The details surrounding both incidents are sharply disputed.
Defendant was convicted of murder in the second degree. Subsequently, this Court reversed thatconviction on the ground that the admission into evidence of certain tape-recorded statements bydefendant, in conjunction with other circumstances at the trial, violated defendant's right againstself-incrimination and right to counsel, and we remitted the matter for a new trial (People v Murphy, 51 AD3d 1057[2008], lv denied 11 NY3d 792 [2008]). Following a retrial, defendant was convicted ofmanslaughter in the second degree and sentenced to 5 to 15 years in prison. He now [*2]appeals, and we affirm.
Initially, we are not persuaded by defendant's contention that County Court should have denied thePeople's reverse-Batson objection to his peremptory challenge of an African-American juror.While defense counsel offered a race-neutral explanation for the challenge—specifically, that thejuror indicated that one of the reasons she kept a dog was for security—our review of the recordsupports the court's factual finding that the reason was pretextual (see People v Hecker, 15NY3d 625, 660-662 [2010]; People v Smocum, 99NY2d 418, 422 [2003]; People v Knowles, 79 AD3d 16, 21 [2010]; People v Fulton, 24 AD3d 959, 962[2005], lv denied 6 NY3d 847 [2006], cert denied 549 US 1037 [2006]). Inparticular, we note that defense counsel had stricken every other African-American juror up to thatpoint, and the court had previously put counsel "on notice" and warned him that his profferedexplanation as to one of those jurors was only "marginally acceptable." Under these circumstances, andmindful that the court's evaluation of counsel's motivation in making the specific challenge at issue hereinturned largely on its assessment of counsel's credibility, which is entitled to great deference (seePeople v Hecker, 15 NY3d at 661 People vSmocum, 99 NY2d at 422; People v Knowles, 79 AD3d at 21-22; People vDolphy, 257 AD2d 681, 683 [1999], lv denied 93 NY2d 872 [1999]), we find no errorin the court's decision to strike the peremptory challenge.
Defendant next argues that County Court erred in excluding both the testimony of a mental healthcounselor who would have testified that defendant exhibits two symptoms of posttraumatic stressdisorder (hereinafter PTSD), and the testimony of a psychiatrist who diagnosed defendant with "subclinical PTSD" based upon his opinion that defendant exhibits three symptoms of PTSD. Defendantargues that such expert testimony was necessary to assist the jury in understanding his state of mind atthe time of the stabbing, which was crucial to his justification defense.
" 'It is for the trial court in the first instance to determine when jurors are able to draw conclusionsfrom the evidence based on their day-to-day experience, their common observation and theirknowledge, and when they would be benefited by the specialized knowledge of an expert witness' "(People v Lee, 96 NY2d 157, 162 [2001], quoting People v Cronin, 60 NY2d 430,433 [1983]). Here, after extensive oral argument and written submissions by both parties, CountyCourt excluded the testimony based upon its conclusions that subclinical PTSD is not a recognizedsyndrome, disease or mental defect, and that the specific symptoms at issue—hypervigilance,emotional numbing, and a sense of helplessness in the face of stress—were within the jury'srange of knowledge and intelligence, particularly since defendant himself would be able to testify abouthis military experience and other events purportedly underlying his symptoms. Under the particularcircumstances presented, we find that the court did not abuse its discretion in this regard (seePeople v Johnston, 273 AD2d 514, 517-518 [2000], lv denied 95 NY2d 935 [2000];People v Fish, 235 AD2d 578, 579-580 [1997], lv denied 89 NY2d 1092 [1997]).
Defendant next contends that the testimony of a police detective briefly noting that defendant"refused to talk about the fight," as well as the People's fleeting reference to that testimony duringsummation, violated defendant's right against self-incrimination. Notably, however, counsel raised noobjection to the summation. Furthermore, when objecting to the testimony, counsel did not contend thatthe offending testimony impermissibly implicated defendant's invocation of his right to remain silent.Rather, counsel stated that his objection was [*3]based upon his beliefthat the line of questioning being pursued by the prosecutor would "ultimately" result in testimony thatdefendant invoked his right against self-incrimination and his right to counsel. When the prosecutorassured him that he would take the questioning in another direction, counsel stated, "That is fine," andno curative instruction was requested. Accordingly, the arguments made herein are not preserved forappellate review. In any event, in light of the evidence presented, we find that any such errors were"harmless beyond a reasonable doubt" inasmuch as there is "no reasonable possibility that the error[s]might have contributed to defendant's conviction" (People v Crimmins, 36 NY2d 230, 237[1975]).
We are also not persuaded by defendant's claim that the prosecutor violated his rights by notingduring summation that defendant failed to provide an exculpatory version of events. Not only diddefendant fail to object, rendering the issue unpreserved, but the prosecutor's comments in that regardreferenced defendant's tape-recorded conversation with his father and sister, not his interaction withpolice. Finally, with respect to defendant's challenge to the redacted version of the tape-recordedconversation that was admitted at the retrial, we note that defendant asks this Court to reverse itsprevious holding that his statements were spontaneous (see People v Murphy, 51 AD3d at1057-1058), which we decline to do.
Peters, Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.