| People v King |
| 2014 NY Slip Op 01770 [115 AD3d 873] |
| March 19, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kamaal C. King, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andEmil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Gavrin, J.), rendered June 18, 2010, convicting him of criminal possession of a weaponin the second degree (two counts), driving while intoxicated in violation of Vehicle andTraffic Law § 1192 (2), and driving while intoxicated in violation of Vehicle andTraffic Law § 1192 (3), upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and the matter is remitted to the Supreme Court, Queens County, for anew trial.
On March 30, 2008, the police received a report regarding a suspicious vehicle in apark. When the police arrived at the park, they observed a vehicle parked on a grassyarea that was not a designated parking area. Upon approaching the vehicle, the officersencountered the defendant asleep in the driver's seat of the vehicle, with the enginerunning. On the seat next to the defendant was a loaded gun. The officers removed thegun from the vehicle, and then arrested the defendant, who was visibly intoxicated andwhose blood alcohol content was found to be .15%. The defendant was convicted, after ajury trial, of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1], [3]) and two counts of driving while intoxicated (Vehicle andTraffic Law § 1192 [2], [3]).
The defendant failed to preserve for appellate review his challenge to the legalsufficiency of the evidence (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish the defendant's guilt of each of the counts of which he wasconvicted. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9NY3d 342 [2007]; People vRomero, 7 NY3d 633 [2006]). Any inconsistencies in the testimony of thepolice witnesses as to the recovery of the subject weapon raised issues of credibility, andwe accord deference to the jury's credibility determination (see People v Dorce, 92 AD3d692 [2012]).
Contrary to the defendant's contention, the record, viewed as a whole, demonstrates[*2]that the defendant was not deprived of the effectiveassistance of counsel (see Strickland v Washington, 466 US 668, 687-694[1984]; People v Benevento, 91 NY2d 708, 714 [1998]).
The Supreme Court, however, erroneously admitted into evidence a portion of anaudiotape of a nearly 15-minute telephone call made by the defendant to a friend whilethe defendant was incarcerated pending trial. In the course of that conversation, thedefendant discussed his plea negotiations, comparing the offer made to him with a morefavorable one allegedly made to another individual who was arrested with two guns inhis waistband. Since counsel and the court correctly agreed that the telephone call couldnot properly be admitted in its entirety (see generally People v Ely, 68 NY2d 520,530-532 [1986]), the court permitted the People to admit the call in redacted form. Onthe portion of the recording that was admitted, the defendant stated, "I am trying to beatmine, mine was just in the v," apparently referring to a vehicle. Under the circumstancesof this case, the introduction of that excerpt, out of context, was misleading and undulyprejudicial, since it gave the appearance that the defendant admitted to knowing that thegun was in his car at the time of his arrest (see generally People v Scarola, 71NY2d 769, 777 [1988]; Peoplev Wilkinson, 71 AD3d 249, 254 [2010]).
Further, certain comments in the prosecutor's summation were improper, includingthe comments in which the prosecutor denigrated the defense, vouched for thetruthfulness of prosecution witnesses, and shifted the burden of proof to the defense by,inter alia, stating that the defendant had not established reasonable doubt or establishedthat the People's witnesses were untruthful or engaged in a "conspiracy," and improperlycommented on the defendant's failure to call a certain witness (see People v Spann, 82 AD3d1013, 1015 [2011]; Peoplev Brown, 26 AD3d 392, 393 [2006]; People v Pagan, 2 AD3d 879, 880 [2003]; People vWalters, 251 AD2d 433, 434-435 [1998]; cf. People v Wongsam, 105 AD3d 980 [2013]).
The errors in the admission of the misleading excerpt of the defendant's telephoneconversation and in the prosecutor's summation were not harmless, as we cannot say thatthere was no significant probability that the jury would have acquitted the defendant hadit not been for these errors (see People v Crimmins, 36 NY2d 230, 242 [1975]).
The defendant's remaining contentions either are without merit or need not bereached in light of our determination.
Accordingly, we reverse the judgment and order a new trial. Dillon, J.P., Dickerson,Cohen and Hinds-Radix, JJ., concur.