| People v Roblee |
| 2011 NY Slip Op 02752 [83 AD3d 1126] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ThomasRoblee, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered March 31, 2010, upon a verdict convicting defendant of the crime of assault in thesecond degree.
In June 2007, in the Town of Queensbury, Warren County, defendant kicked hisfiancÉe in the head with steel-toed boots, causing bleeding, bruising, and pain. A juryconvicted defendant of various charges arising from this incident, but the judgment of convictionwas reversed upon appeal (People vRoblee, 70 AD3d 225 [2009]). Defendant was retried by a jury, convicted of assault inthe second degree, and sentenced to a prison term of seven years with five years of postreleasesupervision. He appeals.
Defendant contends that County Court erred in allowing the boots to be admitted intoevidence, as the People failed to establish a chain of custody, and the boots are fungible evidencerequiring such proof. We disagree. This Court has frequently held that items of clothing arenonfungible, as they are "specifically identifiable" (People v Wynn, 176 AD2d 375, 377[1991]; see People v Hill, 220 AD2d 927, 928 [1995]; People v Flores, 101AD2d 657, 658 [1984]). "When an object possesses unique characteristics or markings and is notsubject to material alteration which is not readily apparent, a simple identification is sufficient towarrant admission" (People v Julian, 41 NY2d 340, 343 [1977] [internal quotation marksand citation omitted]; see People v Basciano, 109 AD2d 945, 946 [1985]). Both thevictim and a police officer who took [*2]the boots from defendantspecifically identified the boots in trial testimony. The victim testified that she was present whendefendant bought the boots, he had owned them for several years, and she had seen themnumerous times. She described their characteristics, including color, material, weight, and thewords "steel toe" printed upon the tongue, and further testified that they were in the samecondition as when she had last seen defendant wear them. The police officer similarly offeredspecific testimony describing the boots by type and color. He testified that he recognized them asthe boots he had obtained from defendant and that they were in the same condition as they hadbeen at that time. This testimony was sufficient to support the admission of the boots intoevidence without "strict proof of the chain of custody" (People v Hill, 220 AD2d at 928).
A court officer's testimony describing a statement made by defendant during a bail hearingwas properly allowed into evidence under the requisite balancing test (see People vMateo, 2 NY3d 383, 424-425 [2004], cert denied 542 US 946 [2004]). Theprosecutor also read defendant's statement from a transcript which had not been admitted intoevidence. The reading was clear error, as conceded by the People both at trial and upon appeal,but we find the error to be harmless in light of the overwhelming proof of defendant's guilt(see People v Crimmins, 36 NY2d 230, 241-242 [1975]). The People's evidence includedtestimony from the victim describing the attack, from a friend of defendant describing hisaccount of the act, and from a physician's assistant who treated the victim's wounds and foundthem consistent with the blunt force trauma caused by a "kick from a steel-toed boot," as well asfive letters written by defendant to the victim. In light of this proof, and also considering thecumulative nature of the improper evidence, there is no significant probability that, if not for theerror, defendant would have been acquitted (see id. at 243; People v Phillips, 55 AD3d 1145,1147 [2008], lv denied 11 NY3d 899 [2008]; People v Bell, 5 AD3d 858, 862 [2004]).
Finally, County Court did not abuse its discretion in allowing expert testimony to explain thevictim's delay in seeking aid or attention immediately following the attack, to the extent that itwas otherwise unexplained. The court did not allow the expert to offer an opinion as to whetherthe conduct at issue constituted domestic violence, nor testify regarding any prior bad acts bydefendant; instead, the expert described the general behavior patterns of domestic violenceperpetrators and victims, which may have aided the jurors in understanding the victim's behavior(see People v Smith, 9 AD3d745, 747 [2004], lv denied 3 NY3d 742 [2004]; People v Carroll, 300 AD2d911, 914 [2002], lv denied 99 NY2d 626 [2003]).
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.