| People v Acevedo |
| 2013 NY Slip Op 08138 [112 AD3d 454] |
| December 5, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Mark Acevedo, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedDecember 19, 2011, convicting defendant, after a jury trial, of murder in the seconddegree and criminal possession of a weapon in the second degree, and sentencing him toan aggregate term of 25 years to life, unanimously modified, as a matter of discretion inthe interest of justice, to the extent of reducing the sentence on the murder conviction toa term of 20 years to life, and otherwise affirmed.
The court properly declined to submit manslaughter in the first degree as a lesserincluded offense. There was no reasonable view of the evidence, viewed most favorablyto defendant, that he merely intended to inflict serious physical injury but not to causedeath. Defendant, after grazing one victim in the side with a bullet, pointed a gun atanother victim, and from between 4 and 10 feet away, shot him three times, including inthe chest and back, as he turned to flee (see e.g. People v Ramsey, 59 AD3d 1046, 1047 [4th Dept2009], lv denied 12 NY3d 858 [2009]).
Defendant was not entitled to be present during legal argument on the admissibilityof expert testimony on gangs, as well as related legal issues. References to theprosecution's factual allegations did not transform the legal issue into a factual or mixedissue, there was no fact-finding procedure, and there was nothing valuable that defendantcould have contributed by his personal presence (see People v Rojas, 15 AD3d 211 [1st Dept 2005], lvdenied 4 NY3d 856 [2005]). In any event, the court excluded almost all of theevidence the People offered at this colloquy.
Defendant's right of confrontation was not violated when an autopsy report preparedby a former medical examiner, who did not testify, was introduced through the testimonyof another medical examiner. The report was not testimonial (see People v Freycinet, 11NY3d 38 [2008]; People vHall, 84 AD3d 79 [1st Dept 2011], lv denied 18 NY3d 924 [2012]), andneither Bullcoming v New Mexico (564 US —, 131 S Ct 2705 [2011]) norany other decision of the Supreme Court of the United States is to the contrary (seeUnited States v James, 712 F3d 79, 87-88 [2d Cir 2013]). To the extent defendantargues that the report should have been redacted to exclude the portion reflecting theauthor's [*2]opinions as to the cause and manner ofdeath, that claim is unpreserved, as defendant never asked the court for such a redaction(see Hall, 84 AD3d at 85), and we decline to review it in the interest of justice.As an alternative holding, we find no basis for reversal, because those opinions were notcontested at trial.
Defendant's remaining evidentiary arguments and assertions of prosecutorialmisconduct are unpreserved and we decline to review them in the interest of justice. Asan alternative holding, we find them to be without merit, except that some portions of theprosecutor's summation were improper but harmless (see People v Crimmins, 36NY2d 230 [1975]). Defendant's ineffective assistance of counsel claims regardingcounsel's failure to preserve these issues are unreviewable on direct appeal because theyinvolve matters not fully explained by the record (see People v Rivera, 71 NY2d705, 709 [1988]; People v Love, 57 NY2d 998 [1982]). Accordingly, sincedefendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claimsmay not be addressed on appeal. In the alternative, to the extent the existing recordpermits review, we find that defendant received effective assistance under the state andfederal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998];Strickland v Washington, 466 US 668 [1984]). Defendant has not shown that anyof counsel's alleged deficiencies fell below an objective standard of reasonableness, orthat, viewed individually or collectively, they deprived defendant of a fair trial oraffected the outcome of the case (compare People v Cass, 18 NY3d 553, 564 [2012], with People v Fisher, 18 NY3d964 [2012]).
We find the sentence excessive to the extent indicated. Concur—Mazzarelli,J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.