| People v Harris |
| 2012 NY Slip Op 07074 [99 AD3d 608] |
| October 23, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sheldon Harris, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Judith S. Lieb, J.), rendered August 25, 2009,convicting defendant, after a jury trial, of murder in the second degree, attempted murder in thesecond degree, assault in the first degree, criminal possession of a weapon in the second degreeand endangering the welfare of a child, and sentencing him to a term of 25 years to life on themurder conviction, to run consecutively to concurrent terms on the remaining convictions of 22years, 22 years, 15 years and one year, respectively, unanimously affirmed.
Defendant challenges the legal sufficiency of the evidence supporting his murder conviction.That claim is unpreserved and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits. We also find that the verdict was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinationsconcerning credibility and its weighing of expert testimony. The evidence supports the inferencethat defendant shot the deceased in the chest at close range, and that he did so with homicidalintent. Furthermore, defendant failed to prove by a preponderance of the evidence his extremeemotional disturbance defense.
The court properly exercised its discretion (see generally People v Lee, 96 NY2d157, 162 [2001]) in allowing the medical examiner to express an opinion that the fatal bullet didnot pass through an intermediate target, testimony that tended to refute a defense theory.Defendant argues that the witness was essentially testifying as a ballistics expert, without beingqualified to do so. However, the opinion at issue did not require expertise in the workings offirearms and ammunition, but in the effect of gunshots on human tissue and the conclusions to bedrawn therefrom. The medical examiner's extensive training and experience qualified her toprovide such an opinion (see People v Boozer, 298 AD2d 261 [1st Dept 2002], lvdenied 99 NY2d 555 [2002]). Moreover, any error in the admission of such testimony wouldbe harmless given the overwhelming evidence of defendant's guilt under the murder count (see e.g. People v Sorrentino, 93 AD3d450 [1st Dept 2012]).
The court also properly exercised its discretion in admitting a tape of a 911 call made duringthis incident, in which screams are heard. The tape was relevant to corroborate some of thetestimony, and it was not so inflammatory that its prejudicial effect exceeded its probative value(see e.g. People v Alvarez, 38 AD3d930, 932 [3d Dept 2007], lv denied 8 NY3d 981[*2][2007]).
Defendant's challenges to the prosecutor's summation are unpreserved (see People v Romero, 7 NY3d911, 912 [2006]), and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal (see People v Overlee, 236 AD2d 133 [1st Dept1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114,118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
We perceive no basis for reducing the sentence. We have considered and rejected defendant'slegal arguments relating to his sentence, and his claim that the assault count should have beendismissed as a lesser included offense of attempted murder. Concur—Tom, J.P., Andrias,Saxe, DeGrasse and Manzanet-Daniels, JJ.