| People v Mercereau |
| 2011 NY Slip Op 04496 [84 AD3d 1270] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JanetRedmond Mercereau, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered July 2, 2009, convicting her of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant requested permission to introduce into evidence a video demonstration of anexperiment conducted by her expert that allegedly would have discredited the People's theorywith regard to the manner in which the murder weapon was allegedly sanitized. Contrary to thedefendant's contention, the Supreme Court providently exercised its discretion in denying thedefendant's request.
"Demonstrations and tests, when relevant to a contested issue, can 'play a positive andhelpful role in the ascertainment of the truth' " (People v Caballero, 34 AD3d 690, 691[2006], quoting People v Acevedo, 40 NY2d 701, 704 [1976]). Although tests anddemonstrations should not lightly be rejected when they would play such a role, "courts must bealert to the danger that, when ill-designed or not properly relevant to the point at issue, instead ofbeing helpful they may serve but to mislead, confuse, divert or otherwise prejudice the purposesof the trial" (People v Acevedo, 40 NY2d at 704; see People v Caballero, 34AD3d at 691). As such, "the trial court itself must decide in the exercise of a sound discretionbased on the nature of the proffered proof and the context in which it is offered, whether thevalue of the evidence outweighs its potential for prejudice" (People v Acevedo, 40 NY2dat 704).
Here, since the expert's parameters for his experiment were based on speculation, theconditions created would not have been sufficiently similar to those that existed during theincident and would likely have caused confusion among the jurors. As such, the Supreme Courtprovidently exercised its discretion in determining that the probative value of the demonstrativeevidence did not outweigh its potential for prejudice (id. at 704-705; see People vCaballero, 34 AD3d at 691-692; People v Walker, [*2]274 AD2d 600, 602 [2000]; People v Moolenaar, 262AD2d 60 [1999]; People v Vega, 240 AD2d 347, 348 [1997]; see generally People vEstrada, 109 AD2d 977, 978-979 [1985]).
The Supreme Court also providently exercised its discretion in denying the defendant'sfor-cause challenge of a prospective juror. The juror, a former police officer, providedunequivocal assurances that he would judge police officer testimony fairly and that he couldrender an impartial verdict based solely on the evidence adduced at trial (see People vJohnson, 40 AD3d 1011, 1012 [2007]; People v Rolle, 4 AD3d 542, 544 [2004]).
There is also no merit to the defendant's contentions with regard to the inquiries the SupremeCourt made after it learned, during deliberations, that the brother of one of the sworn jurors hadsuddenly died. When first notified, the Supreme Court discussed the matter with the juror and thejuror assured all parties that his ability to deliberate fairly would not be affected. As thedefendant did not object to the sufficiency of that inquiry or request that any further inquiry bemade, any contention with regard to this initial inquiry is unpreserved for appellate review(see People v Settles, 28 AD3d 591, 591 [2006]; People v Riccardi, 199 AD2d432 [1993]). Moreover, contrary to the defendant's contention, the Supreme Court providentlyexercised its discretion when it declined to ask the juror further questions when this same matterwas raised the following day. Notably, the Supreme Court addressed the matter by providing thejuror with instructions that had been specifically agreed upon by both parties. Under thecircumstances, no further inquiry was necessary (see People v Buford, 69 NY2d 290, 299[1987]; People v Argendorf, 76 AD3d 1100, 1100 [2010]; People v Erving, 55AD3d 419 [2008]; People v Devison, 38 AD3d 203 [2007]; People v Wright, 35AD3d 172 [2006], lv granted 16 NY3d 801 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.