| People v Thompson |
| 2013 NY Slip Op 05473 [108 AD3d 732] |
| July 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sherwin Thompson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and AyeletSela of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered June 22, 2010, convicting him of manslaughter in the first degree,criminal possession of a weapon in the second degree (two counts), and criminalfacilitation in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During pretrial plea negotiations with the People, the defendant made certaininculpatory statements. The defendant and the People executed an agreement, wherebythey agreed that the People could introduce those statements against the defendant at atrial, inter alia, "to rebut any evidence" offered by him or on his behalf. At the trial, theSupreme Court found that the defendant had triggered this provision of the agreementand permitted the People to introduce the subject statements.
Statements made during the course of plea negotiations can be used against adefendant only if the People specifically bargained for that use (see People vCurdgel, 83 NY2d 862, 864 [1994]; People v Moore, 66 NY2d 1028, 1030[1985]; People v Evans, 58 NY2d 14, 24 [1982]; People v Hunt, 306AD2d 497, 499 [2003]). Under the circumstances of this case, the Supreme Courtimproperly found that the defendant's trial attorney offered evidence and raised factualissues which triggered the agreement (cf. United States v Barrow, 400 F3d 109,116-120 [2d Cir 2005]; United States v Velez, 354 F3d 190, 192-193 [2d Cir2004]). Thus, the Supreme Court should not have permitted the People to introduce thesubject statements into evidence. However, the error was harmless, since the evidence ofthe defendant's guilt, without reference to the error, was overwhelming, and there is noreasonable possibility that the error might have contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 237 [1975]).
Contrary to the defendant's contention, the Supreme Court properly permitted thePeople to impeach one of their own witnesses with his grand jury testimony because histestimony during direct examination at trial affirmatively damaged the People's case(see CPL 60.35 [1]; People v Guevara, 96 AD3d 781, 782 [2012]; People vBroomfield, 163 AD2d 403, 403-404 [1990]; People v Mercado, [*2]162 AD2d 722, 723 [1990]). Moreover, under thecircumstances of this case, considering the damaging nature of the witness's testimonyand the prosecutor's good faith basis for believing it to be false, it was not improper topermit the People to question the witness with regard to statements he had made, andactions he had taken, which expressed a reluctance to testify (see People v DeJesus, 101 AD2d 111, 115 [1984], affd 64 NY2d 1126 [1985]).
The defendant's contention that he was deprived of a fair trial when the SupremeCourt admitted into evidence certain allegedly inflammatory photographs is withoutmerit. Photographic evidence "should be excluded only if its sole purpose is to arouse theemotions of the jury and to prejudice the defendant" (People v Pobliner, 32NY2d 356, 370 [1973], cert denied 416 US 905 [1974]; see People vStevens, 76 NY2d 833, 835 [1990]; People v Thomas, 99 AD3d 737, 738 [2012]). Wheninflammatory photographs are relevant to a material issue at trial, the court has broaddiscretion to determine whether the probative value of the photographs outweighs anyprejudice to the defendant (see People v Stevens, 76 NY2d at 835; People vThomas, 99 AD3d at 738). Here, the photographs at issue were relevant to materialissues in the case, and the Supreme Court did not improvidently exercise its discretion inadmitting them into evidence. Contrary to the defendant's contentions, the photographswere not so inflammatory as to have deprived him of a fair trial.
The defendant's remaining contentions are unpreserved for appellate review(see CPL 470.05 [2]), and we decline to reach them in the exercise of our interestof justice jurisdiction. Eng, P.J., Rivera, Lott and Miller, JJ., concur.