| People v Hill |
| 2011 NY Slip Op 02301 [82 AD3d 1715] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eric D. Hill,Appellant. |
—[*1] Eric D. Hill, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July19, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree(two counts).
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 twocounts of murder in the second degree (Penal Law § 125.25 [1]). The contention ofdefendant that he was deprived of a fair trial by prosecutorial misconduct on summation is notpreserved for our review (see CPL 470.05 [2]) and, in any event, that contention iswithout merit. The alleged instances of prosecutorial misconduct were "either a fair response todefense counsel's summation or fair comment on the evidence" (People v Anderson, 52 AD3d1320, 1321 [2008], lv denied 11 NY3d 733 [2008]).
We reject the contention of defendant in his main and pro se supplemental briefs that he wasdenied effective assistance of counsel. Defendant was arrested in Alabama more than one yearafter the murders. The record does not contain any evidence of an" 'innocent explanation' " for defendant's presence in Alabama at that time (People v Solimini, 69 AD3d 657,658 [2010], lv denied 14 NY3d 893 [2010]). Contrary to the contention of defendant, weconclude that defense counsel's failure to request a jury charge regarding consciousness of guiltbased upon defendant's flight was a valid tactical decision to avoid unnecessarily focusing theattention of the jury on defendant's travel to Alabama following the murders (seeCJI2d[NY] Consciousness of Guilt; see generally People v Peake, 14 AD3d 936, 937-938 [2005]).Defendant was not denied effective assistance of counsel based on defense counsel's failure toobject to the allegedly improper comments by the prosecutor on summation inasmuch as thosecomments did not constitute prosecutorial misconduct (see generally People v Caban, 5 NY3d 143, 152 [2005]). Withrespect to the alleged ineffective assistance of defense counsel in cross-examining the eyewitnessand in stipulating to the admission in evidence of an [*2]autopsyphotograph of one of the victims for the limited purpose of identifying him, we conclude that,when viewed as a whole, defense counsel's efforts reflect "a reasonable and legitimate strategyunder the circumstances and evidence presented" (People v Benevento, 91 NY2d 708,713 [1998]). We therefore conclude that defendant received meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]; People v Workman, 277 AD2d1029, 1032 [2000], lv denied 96 NY2d 764 [2001]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we also reject defendant's contention that the verdict is against the weightof the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject the further contention of defendant in his pro se supplemental brief that he wasdenied the right to be present at a critical stage of the proceedings, i.e., a discussion between theprosecutor and the court with respect to the prosecutor's intention to compel defendant to showhis gold teeth to the jury (cf. People v Dokes, 79 NY2d 656, 662 [1992]). The FifthAmendment privilege against self-incrimination does not preclude a defendant from beingrequired to reveal the physical characteristics of his or her body (see People v Havrish, 8 NY3d389, 393 [2007], cert denied 552 US 886 [2007]; People v Slavin, 1 NY3d 392, 398 [2004], cert denied 543US 818 [2004]), nor is there any requirement that the prosecutor provide defendant with pretrialnotice of the intent to use such evidence (see People v Holmes, 304 AD2d 1043, 1044[2003], lv denied 100 NY2d 642 [2003]). Thus, the discussion between the prosecutorand the court regarding that issue was "not only noncritical[ ] but, as a matter of law,unnecessary" (People v Contreras,12 NY3d 268, 273 [2009]).
We also reject the contention of defendant in his pro se supplemental brief that he was denieda fair trial by the admission in evidence of certain autopsy photographs of the murder victims."The general rule is that photographs of the deceased are admissible if they tend to prove ordisprove a disputed or material issue, to illustrate or elucidate other relevant evidence[ ] or tocorroborate or disprove some other evidence offered or to be offered" (People v Pobliner,32 NY2d 356, 369 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US905 [1974]). "Photographic evidence should be excluded only if its sole purpose is to arouse theemotions of the jury and to prejudice the defendant" (id. at 370), and that is not the casehere. "[T]he [two] photographs at issue were relevant to prove the identity of the murdervictim[s] . . . , and thus the court did not abuse its discretion in admitting thephotographs in evidence" (People vJones, 43 AD3d 1296,1298 [2007], lv denied 9 NY3d 991 [2007], reconsideration denied 10 NY3d 812[2008]). Present—Martoche, J.P., Fahey, Carni, Lindley and Sconiers, JJ.