| People v Powell |
| 2014 NY Slip Op 01475 [115 AD3d 998] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Warren Powell, Appellant. |
—[*1] Paul Czajka, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Columbia County (Nichols,J.), rendered June 16, 2009, upon a verdict convicting defendant of the crime of murderin the second degree.
Defendant was charged with the murder of his wife, who was six months pregnantwhen she disappeared in October 1994. In May 1996, her body was found in a hockeyequipment bag weighted down with rocks in the Hudson River. We reversed defendant'soriginal 1997 conviction (13 AD3d 975, 975-976 [2004], lv denied 4 NY3d 889[2005]) and, following a retrial in 2009, he was again convicted of murder in the seconddegree. County Court sentenced defendant to a prison term of 25 years to life, and henow appeals.
Contrary to defendant's contention, the People did not fail to disclose reports fromthe expert that they presented on their direct case (see CPL 240.20 [1] [c]). ThePeople called a metallurgist, who opined that the hard vinyl ridges on the bottom of thehockey bag containing the victim's remains matched scuff marks observed on thealuminum seats of a boat purchased by defendant the day the victim disappeared. Theexpert was disclosed by the People prior to the first trial and defendant acknowledgedreceipt of the expert's testimony, the exhibits he relied on at the first trial and the notes hemade subsequent to that trial. In the absence of any indication that material prepared bythe expert had been withheld from defendant, we find no basis to conclude that anyfurther disclosure was required (see People v Thompson, 92 AD3d 1139, 1140 [2012],affd 21 NY3d 555 [2013]; People v Bryant, 298 AD2d 845, 845-846[2002], lv denied 99 [*2]NY2d 556 [2002];People v Caban, 118 AD2d 957, 959 [1986]).
Nor did County Court err in failing to give an adverse inference charge or some othersanction based on the natural fading of the scuff marks over time. The markings werestill visible and available for inspection to defendant at the time of the first trial, as wellas after that conviction had been reversed, and defendant has identified no bad faith onthe part of the People in the loss of this evidence. The boat itself was not offered asevidence of the markings during the second trial. Rather, photographs taken in 1996 wereadmitted at both trials. Given defendant's previous access to the markings while theywere still visible and his ability to inspect or test them, we find no basis to disturb CountyCourt's exercise of its discretion in declining to impose any sanction against the People(see People v Carpenter, 88AD3d 1160, 1161 [2011]; People v Bass, 277 AD2d 488, 493 [2000], lvdenied 96 NY2d 780 [2001]; People v Kehn, 109 AD2d 912, 915 [1985]).
County Court properly exercised its discretion in allowing photographs of the victiminto evidence. "Unless photographs lack probative value and are presented solely for thepurpose of inflaming a jury, they are admissible in a criminal trial, particularly wherethey tend to support a material issue or corroborate other evidence in the case" (People v Alvarez, 38 AD3d930, 931 [2007], lv denied 8 NY3d 981 [2007] [internal quotation marks,citations and brackets omitted]; see People v Stevens, 76 NY2d 833, 835-836[1990]; People v Skinner, 298 AD2d 625, 626 [2002]). Here, the photographs,while undeniably gruesome, were relevant in that they tended to establish the element ofintent to cause death required for murder in the second degree based on the depiction ofthe handholds tied into the rope that was tightly wrapped around the victim's throat(see Penal Law § 125.25 [1]). Further, the trussed position of the body asdepicted in the photographs corroborated the testimony that defendant had explained to awitness how to bind a dead body into a fetal position in order to dispose of it. Moreover,the People cropped two photographs that included the victim's face to limit what wasseen beyond the rope, and County Court "appropriately instructed the jury to avoidmaking emotional judgments based on any gruesome scenes" (People v Alvarez,38 AD3d at 932).
Defendant has not preserved his claims that a Frye hearing should have beenheld and that the expert testimony was not necessary, inasmuch as there was no requestfor a hearing and no objection to the testimony (see CPL 470.05 [2]; People vAngelo, 88 NY2d 217, 223 [1996]; People v Hinspeter, 12 AD3d 617, 618 [2004], lvdenied 4 NY3d 764 [2005]). Nor did defendant claim before County Court that thePeople improperly cross-examined him regarding his criminal justice background or thatthe testimony of a jailhouse informant should not have been admitted. Accordingly, theseissues are also unpreserved for our review. Likewise unpreserved is defendant'scontention that County Court erred in instructing the jury to reach a unanimous verdict ofnot guilty on the murder in the second degree charge before considering the lesserincluded offense of manslaughter in the first degree, inasmuch as defendant made norequest for a different charge and did not object to the charge as given (see People vHolzer, 52 NY2d 947, 948 [1981]; People v Henehan, 111 AD3d 1151, 1153 [2013]; People v Fauntleroy, 108AD3d 885, 887 [2013], lv denied 21 NY3d 1073 [2013]). In any event, thereis no merit to any of these contentions.
Defendant's argument that County Court erred in its handling of jury notes is alsowithout merit. Defendant does not take issue with the response to the notes provided byCounty Court, but claims instead that the court erred in failing to read them verbatim intothe record. While a reading of the notes into the record is the better practice, it is notrequired where, as here, [*3]the record reflects thatdefendant received meaningful notice regarding the content of each substantive notereceived from the jury and he was able to meaningfully participate in formulating theresponses to the notes (see CPL 310.30; People v Alcide, 21 NY3d 687, 692-693 [2013]; People v Kadarko, 14 NY3d426, 429 [2010]; People vCooper, 107 AD3d 1054, 1055 [2013]; People v Woodrow, 89 AD3d 1158, 1159-1160 [2011],lv denied 19 NY3d 978 [2012]; compare People v Kisoon, 8 NY3d 129, 135 [2007];People v O'Rama, 78 NY2d 270, 277-278 [1991]). Nor is there any evidence thatdefendant was not present when the jury was instructed, as required by CPL 310.30.
Defendant's remaining contentions, to the extent not specifically discussed, havebeen considered and determined to be without merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.