| People v Gholam |
| 2012 NY Slip Op 06647 [99 AD3d 441] |
| October 4, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v HaronGholam, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered July 17, 2007,convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing himto a term of eight years, unanimously affirmed.
We find that the trial court did not err in admitting defendant's written confession andportions of his videotaped confession by which he described his activities with his accompliceson the day of his encounter with Thomas Whitney, Jr., the victim of the crime. Notwithstandingdefendant's argument, the challenged evidence did not concern the type of illegal or immoralconduct that would have deprived defendant of a fair trial (see e.g. People v Jenneman, 37 AD3d 736 [2007], lv denied9 NY3d 866 [2007]).
In the early morning hours of May 21, 2006, defendant and his six accomplices attackedWhitney in the street. In the course of the attack, Whitney sustained a fatal skull fracture.Defendant does not challenge the admission of the portion of the videotaped confession by whichhe admitted to taking a swing at Whitney during the attack. However, defendant argues that thevideotape should have been redacted to eliminate his statements that he was present when hisaccomplices were involved in a scuffle inside of a nightclub just prior to the attack; that one ofdefendant's accomplices directed a racial epithet at Whitney immediately before the attack; thatone of the accomplices stole Whitney's wallet and defendant stole his cell phone as he layunconscious on the ground; that defendant's accomplices used Whitney's credit card to makeillicit purchases on the morning of the attack and that defendant and his accomplices smokedmarijuana on the morning of the attack. Defendant further contends that questions put to himregarding a small yellow hammer that he admitted to having carried around in the past for"protection" should have been excised from the videotape. Defendant takes the position that hisadmission that he swung at Whitney and missed was the only part of his statements thatconstituted relevant evidence. This argument does not withstand scrutiny in light of the nature ofthe crime charged.
"As a general rule evidence of unconnected, uncharged criminal conduct is inadmissible ifoffered for no other purpose than to raise an inference that a defendant is of a criminaldisposition" (People v Vails, 43 NY2d 364, 368 [1977] [citations omitted]).[*2]"Although any evidence of prior criminal conduct may have someprejudicial effect, when the prior activity is directly probative of the crime charged it may bedeemed to outweigh that effect" (id. [citations omitted]). Here, defendant was tried on acharge of gang assault in the second degree (Penal Law § 120.06). The crime is defined asfollows: "A person is guilty of gang assault in the second degree when, with intent to causephysical injury to another person and when aided by two or more other persons actually present,he causes serious physical injury to such person or to a third person" (id.). Under thestatute, the People were required to prove that defendant was aided by two or more persons whowere, at least, in the immediate vicinity of the assault upon Whitney and capable of renderingimmediate assistance to defendant in his commission of the crime (see People v Sanchez, 13 NY3d554, 564 [2009]). Evidence of defendant's activities with his accomplices prior to andimmediately after the assault was relevant to the issue of whether defendant swung at Whitneywhile aided by accomplices as opposed to acting alone. Evidence of uncharged crimes may bereceived if it helps to establish some element of the crime under consideration (People vAlvino, 71 NY2d 233, 241 [1987]). In this case, the statements in question can be reasonablyconsidered to have helped establish the element of being "aided by two or more persons actuallypresent" by showing that defendant was involved in other activities with his accomplices aroundthe time that the assault was committed.
We find no merit in defendant's claim that he was deprived of his Sixth Amendment right toconfrontation under Crawford v Washington (541 US 36 [2004]) on the basis of his beingquestioned about the thought processes of one of his accomplices. Questions themselves are nothearsay because they are not offered for their truth (see generally People v Voymas, 39 AD3d 1182, 1184 [2007], lvdenied 9 NY3d 852 [2007]). Defendant's Confrontation Clause claim is otherwiseunpreserved and we decline to review it in the interest of justice. As an alternative holding, wereject it on the merits.
In all other respects, defendant's claims are subject to the standard applicable tonon-constitutional harmless error. Under that standard an error will be deemed harmless whenthe proof of guilt was overwhelming and there was no significant probability that the jury wouldhave acquitted had the error not occurred (People v Crimmins, 36 NY2d 230, 241-242[1975]). Turning to the record before us, defendant's undisputed admission that he swung atWhitney, the victim, while the latter was being set upon and seriously injured by defendant'saccomplices, constitutes overwhelming proof of guilt of gang assault in the second degree.Contrary to defendant's assertions, there was no significant probability that the jury would haveacquitted had it not heard references to the earlier scuffle, the racial slur, the carrying of thehammer (which itself is not a crime), the theft of Whitney's wallet, the illicit use of his creditcard, and the marijuana smoking. In this regard it is significant that the trial court instructed thejury that it was to consider the evidence of uncharged bad acts solely for the purposes ofproviding background information, a complete record of defendant's videotaped admissions,evidence as to whether defendant acted in concert with others and evidence of defendant's intentat the time of the alleged crime. "Jurors are presumed to follow the legal instructions they aregiven" (People v Baker, 14 NY3d266, 274 [2010]). Although we affirm, we are left with a nagging sense of frustration at thetrial court's refusal to answer counsel's question of whether or not it viewed the video before itwas shown to [*3]the jury. Such a viewing by the court wasessential in keeping with its duty to evaluate the admissibility of evidence (see People vVentimiglia, 52 NY2d 350, 361-362 [1981]). Finally, defendant's sentence was not undulyharsh or severe. Concur—Tom, J.P., Friedman, Acosta, DeGrasse and Román, JJ.