| People v Wilson |
| 2012 NY Slip Op 08348 [101 AD3d 764] |
| December 5, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rahman Wilson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andMarie-Claude P. Wrenn-Myers of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Kings County (Guzman, J.),rendered September 3, 2010, convicting him of murder in the second degree (two counts) andcriminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him toconsecutive indeterminate terms of imprisonment of 25 years to life on the convictions of murderin the second degree, and to a concurrent determinate term of imprisonment of 15 years, followedby a term of five years of postrelease supervision, on the conviction of criminal possession of aweapon in the second degree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentences imposed upon the defendant's convictions of murder in the second degreeto consecutive indeterminate terms of imprisonment of 20 years to life; as so modified, thejudgment is affirmed.
The defendant's contention that the evidence was not legally sufficient to support theconvictions of murder in the second degree is unpreserved for appellate review (see CPL470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution, wefind that those convictions were supported by legally sufficient evidence (see People vContes, 60 NY2d 620, 621 [1983]). Further, upon our independent review of the evidence,we are satisfied that the verdict of guilt on those charges was not against the weight of theevidence (see People v Danielson, 9NY3d 342 [2007]; People vRomero, 7 NY3d 633 [2006]).
The defendant failed to preserve for appellate review his present contention that theprosecutor improperly elicited hearsay testimony from an eyewitness, namely, that while at thetime of the murder, the eyewitness thought the coworker whom he had identified as the shooterwas named "Ramel," he learned later from his girlfriend, who also worked with the defendant,that the coworker's name was "Rahman," which is the defendant's first name (see CPL470.05 [2]). However, reaching the issue in the exercise of our interest of justice jurisdiction, weconclude that it was error to admit such testimony. Contrary to the People's contention, thistestimony was not properly admitted to "complete the narrative" of how the eyewitness came toknow "Ramel's" true name. This is not a case, for example, in which a police witness testifies toinformation he learned [*2]from a nontestifying witness, not forthe truth of the information, but to explain the police conduct (see e.g. People v Tucker, 54 AD3d1065 [2008]; People v Monroe, 216 AD2d 494 [1995]). Rather, here, the testimonywas offered for its truth, i.e., to prove that the person the eyewitness saw shoot the victim was, infact, Rahman. Accordingly, the testimony was improperly admitted, as it was inadmissiblehearsay (see generally People vKass, 59 AD3d 77, 86 [2008]). Nevertheless, the error was harmless, since the evidenceof the defendant's guilt was overwhelming and there is no significant probability that the errorcontributed to his conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).Furthermore, contrary to the defendant's contention, the error in admitting the hearsay evidencedid not violate his right to confront witnesses because the testimony elicited by the People duringdirect examination did not imply that the eyewitness's girlfriend viewed the shooting andidentified the defendant as the shooter, but, rather, indicated that the girlfriend merely suppliedthe correct name of the subject coworker (cf. People v Berry, 49 AD3d 888 [2008]; People v Johnson, 7 AD3d 732,733 [2004]).
The defendant's contention that the prosecutor improperly questioned a defense witness as towhether he had testified before the grand jury is unpreserved for appellate review. In any event,while the contention has merit (see People v Dawson, 50 NY2d 311, 323 n 5 [1980];People v Cippola, 96 AD2d 1102 [1983]; see also CPL 190.50 [1]), the error washarmless (see People v Crimmins, 36 NY2d 230 [1975]).
The defendant was afforded the effective assistance of trial counsel (see People v Turner, 5 NY3d 476,480 [2005]; People v Baldi, 54 NY2d 137, 146-147 [1981]).
Under the circumstances of this case, the imposition of a term of imprisonment of 25 years tolife for each of the defendant's convictions of murder in the second degree was excessive to theextent indicated herein.
The defendant's remaining contention is without merit. Skelos, J.P., Balkin, Dickerson andHinds-Radix, JJ., concur.