| People v Case |
| 2014 NY Slip Op 00526 [113 AD3d 872] |
| January 29, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Oliver Case, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andAnthea H. Bruffee of counsel; Daniel Alster on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered October 28, 2011, convicting him of attempted assault in the firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At trial, the complainant testified that, on a Brooklyn street in daylight, the defendantshot him in the right knee. The complainant had known the defendant for approximatelytwo years when the shooting occurred. The People sought to introduce into evidenceportions of several recorded telephone calls between the defendant and his friends, whichwere placed when the defendant was incarcerated on Rikers Island, on the grounds thatthe calls contained admissions of guilt, as well as evidence of the defendant'sconsciousness of guilt. In particular, during the calls, the defendant admitted that he hadshot the complainant, indicated that he was trying to sell a gun, and discussed plans tointimidate or coerce the complainant so that he would not testify. Following a hearing,and over defense objections, portions of 17 recorded telephone calls, placed betweenJune 15, 2010, and August 29, 2010, were admitted into evidence and played for the jury.
Portions of five recordings were properly admitted into evidence since theycontained admissions that the defendant had shot the complainant (see People v Caban, 5 NY3d143, 151 [2005]; People v Chico, 90 NY2d 585, 589 [1997]; Reed vMcCord, 160 NY 330, 341 [1899]). The People "were not bound to stop afterpresenting minimum evidence but could go on and present all the admissible evidenceavailable to them, regardless of the trial strategy [the] defendant adopted" (People vAlvino, 71 NY2d 233, 245 [1987]; see People v Royster, 43 AD3d 758, 759 [2007]). Inaddition, one of those recordings also was properly admitted because it containedevidence that the defendant owned a pistol and was trying to dispose of it after his arrest.While the defendant contends that, in the recording, he was not discussing the pistol usedto shoot the complainant, any uncertainty as to the identification of the gun affects onlythe weight to be given to the recording, not its admissibility (see People vShenouda, 283 AD2d 446 [2001]; cf. People v Inesti, 95 AD3d 690, 692 [2012]).[*2]
The Supreme Court also properly admitted intoevidence portions of 13 recordings, including one of those previously addressed,documenting a plot among the defendant and his friends to coerce the complainant intonot testifying. "Certain postcrime conduct is 'indicative of a consciousness of guilt, andhence of guilt itself' " (People v Bennett, 79 NY2d 464, 469 [1992], quotingPeople v Reddy, 261 NY 479, 486 [1933]). "Even equivocalconsciousness-of-guilt evidence may be admissible so long as it is relevant, meaning thatit has a tendency to establish the fact sought to be proved—that [the] defendantwas aware of guilt" (People v Bennett, 79 NY2d at 470). Here, the probativevalue of this evidence outweighed its potential for prejudice (see People v Anderson, 76AD3d 980, 981 [2010]).
The defendant's contentions that the Supreme Court should have given certainlimiting instructions are unpreserved for appellate review, as he never requested thatthese instructions be given (see CPL 470.05 [2]; People v LaPetina, 9 NY3d854, 855 [2007]; People vBibbes, 98 AD3d 1267, 1269 [2012], amended on rearg 100 AD3d1473 [2012]; People vChin, 69 AD3d 752 [2010]; People v Norman, 40 AD3d 1128, 1130 [2007]). Similarlyunpreserved for appellate review are the defendant's contentions regarding theprosecutor's summation (see CPL 470.05 [2]; People v Todd, 108 AD3d 684 [2013]; People v Alexander, 100AD3d 649, 650 [2012]). In any event, as to these unpreserved issues, any errors herewere harmless given the overwhelming evidence of guilt, and the lack of significantprobability that any such errors contributed to the conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Ross, 104 AD3d 878, 880 [2013]; see alsoPeople v Cintron, 95 NY2d 329, 332-333 [2000]).
The defendant's remaining contention is without merit. Rivera, J.P., Dillon, Romanand Miller, JJ., concur.