| People v Thomas |
| 2012 NY Slip Op 06627 [99 AD3d 737] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Thomas, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William H. Branigan of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Hollie,J.), rendered November 17, 2009, and (2) and amended judgment of the same court renderedNovember 24, 2009, convicting him of rape in the first degree (two counts), robbery in the firstdegree (three counts), unlawful imprisonment in the first degree (three counts), criminal use of afirearm in the first degree, and endangering the welfare of a child, upon a jury verdict, andimposing sentence.
Ordered that the appeal from the judgment rendered November 17, 2009, is dismissed, asthat judgment was superseded by the amended judgment rendered November 24, 2009; and it isfurther,
Ordered that the amended judgment is affirmed.
Photographic evidence "should be excluded only if its sole purpose is to arouse the emotionsof the jury and to prejudice the defendant" (People v Pobliner, 32 NY2d 356, 370 [1973],cert denied 416 US 905 [1974]; see People v Stevens, 76 NY2d 833 [1990]; People v Sampson, 67 AD3d1031, 1032 [2009]). When inflammatory photographs are relevant to a material issue at trial,the court has broad discretion to determine whether the probative value of the photographsoutweighs any prejudice to the defendant (see People v Stevens, 76 NY2d at 833;People v Upshaw, 242 AD2d 548, 549 [1997]; People v Harrison, 207 AD2d 359[1994]). The photographs at issue here were relevant to material issues in the case, and theSupreme Court did not improvidently exercise its discretion in admitting them into evidence.Contrary to the defendant's contentions, the photographs, as redacted by the court, were not soinflammatory as to have deprived him of a fair trial.
The defendant's remaining contentions are unpreserved for appellate review (see CPL470.05 [2]), and we decline to reach them in the exercise of our interest of justice jurisdiction.Angiolillo, J.P., Florio, Belen and Roman, JJ., concur.