| People v Green |
| 2012 NY Slip Op 01616 [92 AD3d 953] |
| February 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AveryGreen, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Cohen, J.),rendered March 20, 2008, convicting him of murder in the first degree, robbery in the first degree(five counts), robbery in the second degree (three counts), criminal possession of a weapon in thesecond degree (three counts), assault in the second degree (two counts), burglary in the seconddegree, attempted burglary in the second degree, attempted assault in the second degree, criminalsale of a firearm in the third degree (two counts), criminal possession of a weapon in the thirddegree (two counts), criminal sale of a controlled substance in the third degree (three counts),criminal possession of a controlled substance in the third degree (four counts), conspiracy in thefourth degree (two counts), criminal possession of a controlled substance in the fourth degree(two counts), conspiracy in the fifth degree, and enterprise corruption, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the prosecutor's opening statement failed to describe counts35 through 37 of the indictment is unpreserved for appellate review (see CPL 470.05 [2];People v Hawkins, 11 NY3d484, 492 [2008]). The remaining challenged portions of the prosecutor's opening statement"adequately described what the People intended to prove, and properly prepared the jury toresolve the factual issues at the trial" (People v Larios, 25 AD3d 569, 570 [2006]; see CPL260.30 [3]; People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911[1981]).
The County Court providently exercised its discretion in admitting the testimony of an expertwitness concerning gangs, including their customs and violent practices. This evidence wasprobative of the defendant's motive, as well as explanatory of the defendant's actions and, thus,was critical to the jury's understanding of the relationship between the defendant and the victims(see People v Aguilar, 79 AD3d899, 900 [2010]; People vScott, 70 AD3d 977 [2010]).
Contrary to the defendant's contention, the County Court providently exercised its discretionin permitting a witness to testify as to threats made to him prior to trial, as there wascircumstantial evidence linking the defendant to those threats (see People v Spruill, 299AD2d 374, [*2]375 [2002]). "Such evidence is a factor uponwhich a jury can infer the defendant's 'consciousness of guilt' " (People v Myrick, 31 AD3d 668,669 [2006], quoting People v Cotto, 222 AD2d 345, 345 [1995]; see People vKornegay, 164 AD2d 868 [1990]).
After hearing a recording of a rap performance proffered by the People, the County Courtadmitted into evidence a transcript of lyrics from that performance, which had been written bythe defendant or members of the gang with which the defendant was affiliated, and describedcrimes that the gang members committed or were going to commit. The defendant affirmativelywaived his right, on appeal, to challenge the admission of the transcript, since he was representedby counsel when he stipulated to the admission of the transcript into evidence (see People v Riley, 79 AD3d 911,912 [2010]).
The defendant argues that the admission into evidence of the testimony of an FBI specialagent and a former New York State Police investigator (hereinafter together the law enforcementwitnesses) concerning their understanding of other written rap lyrics, which were found in thedefendant's bedroom, as well as the structure of the gang to which the defendant belonged, andthe defendant's place in that hierarchy, violated his right to confront witnesses against him sinceit constituted testimonial hearsay (see Crawford v Washington, 541 US 36, 51-52 [2004])and that, moreover, the testimony was "prejudicial." The admission of this testimony intoevidence, however, does not warrant reversal.
The challenged testimony was based on, among other things, transcripts of wiretappedconversations between and amongst members of the gang to which the defendant belonged,including the defendant himself, personal observations made and investigations conducted by thelaw enforcement witnesses, and interviews with and questioning of former and current membersof the defendant's gang conducted by the law enforcement witnesses.
Contrary to the defendant's contention, the testimony with respect to recorded telephoneconversations between the defendant and other persons, including police informants, in which thelogistics for numerous criminal acts were arranged, was properly admitted into evidence. Theseconversations represented part of the criminal res gestae and, thus, are not hearsay in the firstinstance (see People v Taylor, 82AD3d 1016, 1017 [2011]; People vAdames, 53 AD3d 503 [2008]), let alone testimonial hearsay. Similarly, to the extentthat the expert testimony based on the wiretap transcripts was not elicited to prove the truth of adeclarant's statement, but for other reasons, that statement was not hearsay (see People v Perez, 91 AD3d 673,673 [2012]), much less testimonial hearsay. Moreover, even if some of the declarations retrievedfrom the wiretapped conversations and repeated to the jury by the law enforcement witnessesmeet the definition of common-law hearsay, those declarations do not constitute testimonialhearsay, since the declarants were not subject to formal or quasi-formal questioning when theymade those declarations (see generally Crawford v Washington, 541 US at 68). Further,since the declarants were presumably unaware that their conversations were being wiretapped,they did not make those declarations with a reasonable expectation that the declarations would beused prosecutorially (id. at 51, 68; see People v Clay, 88 AD3d 14, 17-18 [2011]). Crucially, thedefendant made no objection before the County Court—and makes no argument to thisCourt—that those declarations should have been excluded from evidence as simplenontestimonial hearsay. To the extent that the law enforcement witnesses testified as to anydeclarations made to them in the course of their questioning of gang members other than thedefendant, the defendant correctly argues that this testimony was testimonial hearsay, and that itsadmission into evidence violated his Sixth Amendment right to confront witnesses against him(see Crawford v Washington, 541 US at 51-52; People v Clay, 88 AD3d at 17).However, the evidence of the defendant's guilt, without reference to the alleged error, wasoverwhelming, and there is no reasonable possibility that the alleged error might havecontributed to the defendant's conviction. Thus, any constitutional error arising from theadmission into evidence of testimonial hearsay was harmless beyond a reasonable doubt (seePeople v Crimmins, 36 NY2d 230, 237 [1975]; People v Rush, 44 AD3d 799, 800 [2007]).
To the extent that the defendant argues that the admission into evidence of the lawenforcement witnesses' testimony was "prejudicial," any such prejudice must be balanced againstthe relevance of the testimony. The lyrics themselves were relevant to the issue of the defendant's[*3]consciousness of guilt (see People v Wallace, 59 AD3d 1069, 1070 [2009]), and both thelyrics and the testimony of the law enforcement witnesses concerning their understanding of themeaning of those lyrics were relevant to defendant's knowledge and intent (see United Statesv Foster, 939 F2d 445, 455 [1991]). Similarly, the testimony concerning the structure of thegang to which the defendant belonged, as well as his place in the gang hierarchy, was relevant tothe context of the lyrics composed by the defendant and those found in his bedroom, andexplained the relationship between the defendant and his coconspirators, along with their motivesand intent (see People v Cherry, 46AD3d 1234, 1237 [2007]; People vFaccio, 33 AD3d 1041, 1042 [2006]). Under the circumstances of this case, therelevance of this challenged evidence more than outweighed the potential prejudice to thedefendant and, hence, the evidence was properly admitted over any objection based on prejudice(see People v Russo, 81 AD3d666, 667-668 [2011]).
The testimony of a coconspirator was properly received into evidence under thecoconspirator exception to the hearsay rule (see People v Caban, 5 NY3d 143, 148 [2005]; People v Basagoitia, 55 AD3d 619[2008]).
The defendant's contention that the evidence was legally insufficient to establish his guiltwith respect to enterprise corruption is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d at 492) and, in any event, is without merit. Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt withrespect to enterprise corruption beyond a reasonable doubt (see CPL 470.05 [2]; PenalLaw § 460.20; People v Hawkins, 11 NY3d at 492). Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt withrespect to enterprise corruption was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's remaining contentions are without merit. Dillon, J.P., Angiolillo, Florio andDickerson, JJ., concur.