| People v Dockery |
| 2013 NY Slip Op 04621 [107 AD3d 913] |
| June 19, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Aaron A. Dockery, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy, Ilisa T. Fleischer,and Ames C. Grawert of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Peck, J.), rendered October 3, 2011, convicting him of criminal possession of a weaponin the third degree, reckless endangerment in the second degree, and aggravatedunlicensed operation of a motor vehicle in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised itsdiscretion in denying his request for substitution of assigned counsel is without merit. Adefendant who claims a conflict of interest based on assigned counsel's relationship witha former client must show that his or her defense was "affected by the alleged conflict"(People v Walker, 285 AD2d 521, 522 [2001]; see People v Longtin, 92NY2d 640, 644 [1998]; People v Ortiz, 76 NY2d 652, 656-657 [1990]; People v Thompson, 89 AD3d1117, 1117 [2011]). The defendant failed to make such showing. Moreover, thedefendant did not demonstrate that there had been a complete breakdown ofcommunication in his relationship with counsel (see People v Winter, 88 AD3d 824, 824 [2011]).
The defendant further contends that the Supreme Court committed reversible errorwhen, in response to a note from the jury, it failed to charge the jury with the defense ofjustification regarding the weapon possession and reckless endangerment charges.However, this contention is also unpreserved for appellate review to the extent that thedefendant argues that the court's failure to charge the defense violated his constitutionalright to due process (see Peoplev Grant, 7 NY3d 421, 424 [2006]; People v Thomas, 65 AD3d 1170, 1172 [2009]; People v Diaz, 50 AD3d919 [2008]). In any event, the justification defense did not apply to the criminalpossession of a weapon in the third degree charge (see People v Pons, 68 NY2d264, 266 [1986]; People v Almodovar, 62 NY2d 126 [1984]; People v Rodriguez, 77 AD3d975, 976 [2010]). Moreover, there was no reasonable view of the evidence underwhich the defendant's alleged conduct was justified with respect to the recklessendangerment in the second degree charge.
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that the Supreme Court erred in admitting into evidence a recording of a 911emergency call from an anonymous caller who claimed to have witnessed the shooting(cf. People v Reynolds, 83AD3d 1098, 1098 [2011]). However, such admission was not error. The recordingsatisfied the excited utterance exception to the hearsay rule, since it evidenced that thecaller was under the influence of [*2]the excitement ofthe incident and lacked the reflective capacity essential for fabrication (see People v Dominick, 53AD3d 505, 505-506 [2008]). Contrary to the defendant's contention, the recordingwas also properly admissible as a present sense impression, since the caller's statementswere sufficiently contemporaneous (see People v York, 304 AD2d 681, 681[2003]) and were corroborated by the evidence adduced at trial (cf. People vVasquez, 88 NY2d 561, 576 [1996]). Additionally, the admission of the recordingdid not violate the defendant's right to confrontation. The call was nontestimonial innature, since its primary purpose was to obtain an emergency response to the shooting(see People v Clay, 88AD3d 14, 17 [2011]; People v Legere, 81 AD3d 746, 750 [2011]; see alsoDavis v Washington, 547 US 813 [2006]).
The defendant's contention that the Supreme Court should have given an adverseinference charge or otherwise sanctioned the People based on the alleged failure of thepolice to recover a store surveillance videotape without merit. "The People are subject tosanctions for failing to preserve discoverable evidence only if the evidence is lost ordestroyed while in their possession" (People v Dei, 2 AD3d 1459, 1461 [2003]; see People vO'Brien, 270 AD2d 433, 434 [2000]; People v Tutt, 305 AD2d 987, 987[2003]). Here, the record does not establish that the videotape was ever in the possessionof the police.
There is no merit to the contention raised by the defendant in his pro se supplementalbrief that his trial counsel was ineffective because he only made a general motion for atrial order of dismissal based upon the People's alleged failure to make out a prima faciecase, and did not raise the specific grounds which the defendant now raises. "Adefendant is not denied effective assistance of trial counsel merely because counsel doesnot make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d277, 287 [2004]).
The defendant's remaining contentions, including the additional arguments raised inhis pro se supplemental brief, are unpreserved for appellate review. Balkin, J.P.,Leventhal, Lott and Sgroi, JJ., concur.