| People v Boop |
| 2014 NY Slip Op 04296 [118 AD3d 1273] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAaron M. Boop, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedOctober 7, 2009. The judgment convicted defendant, upon a jury verdict, of vehicularmanslaughter in the first degree (two counts), manslaughter in the second degree,aggravated unlicensed operation of a motor vehicle in the first degree, driving whileintoxicated (two counts) and aggravated driving while intoxicated.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts each of vehicular manslaughter in the first degree (PenalLaw § 125.13 [1], [2] [b]) and driving while intoxicated (Vehicle andTraffic Law § 1192 [2], [3]). The charges arose from an incident in whichdefendant, while in an intoxicated condition, drove a pickup truck that went off of theroad and struck a tree, causing the death of the front seat passenger.
Defendant failed to object when the prosecutor elicited testimony from a deputysheriff that defendant looked away instead of answering certain questions about the deathof the victim, and thus failed to preserve for our review his contention that the prosecutorimproperly used his postarrest silence against him at trial (see People v Jackson, 108AD3d 1079, 1079 [2013], lv denied 22 NY3d 997 [2013]; People v Ray, 63 AD3d1705, 1707 [2009], lv denied 13 NY3d 838 [2009]). In any event, any errorin the admission of that testimony is harmless beyond a reasonable doubt because there is"no reasonable possibility that the error might have contributed to defendant'sconviction" (People v Crimmins, 36 NY2d 230, 237 [1975]; see Jackson,108 AD3d at 1079-1080; Peoplev Murphy, 79 AD3d 1451, 1453 [2010], lv denied 16 NY3d 862 [2011];People v Mosby, 239 AD2d 938, 938-939 [1997], lv denied 90 NY2d942 [1997]).
Defendant further contends that County Court erred in admitting in evidencephotographs of the tree that the vehicle struck, because flowers had been laid at the baseof the tree. Defendant contends that the photographs were an improper appeal to theemotions of the jurors because the flowers constituted a "shrine" to the victim. Contraryto the contention of the People, we conclude that defendant preserved his contention forour review. Defense counsel [*2]objected to thephotographs, noted the presence of the flowers, and argued that defendant would beprejudiced by the admission of the photographs in evidence. Consequently, the issue ispreserved for our review because "the court 'was aware of, and expressly decided, the[issue] raised on appeal' " (People v Collins, 106 AD3d 1544, 1546 [2013], lvdenied 21 NY3d 1072 [2013], quoting People v Hawkins, 11 NY3d 484, 493 [2008]; see People v Roberts, 110AD3d 1466, 1467-1468 [2013]; People v Duncan, 177 AD2d 187, 190-191[1992], lv denied 79 NY2d 1048 [1992]). We nevertheless reject defendant'scontention on the merits. "The general rule is stated in People v Pobliner (32NY2d 356, 369[(1973), rearg denied 33 NY2d 657 (1973), cert denied416 US 905 (1974)]; see also, People v Stevens, 76 NY2d 833 [(1990)]):photographs are admissible if they tend 'to prove or disprove a disputed or material issue,to illustrate or elucidate other relevant evidence, or to corroborate or disprove some otherevidence offered or to be offered.' They should be excluded 'only if [their] solepurpose is to arouse the emotions of the jury and to prejudice thedefendant' " (People v Wood, 79 NY2d 958, 960 [1992]; see People v Lawson, 114AD3d 962, 963 [2014]). Here, we agree with the People that the sole purpose of theevidence was not to arouse the emotions of the jury. To the contrary, the photographsestablished the relative positions of the tree and the roadway, the visibility of the tree,and the straight nature of the roadway, all of which were relevant to the jury's factualdeterminations, including whether defendant was driving while in an intoxicatedcondition.
Defendant did not object when the court directed the prosecutor to turn off theoverhead projector upon which certain evidence was displayed to the members of thepublic seated in the courtroom, and thus failed to preserve for our review his contentionthat the court thereby closed the courtroom in violation of defendant's right to a publictrial (see People v George, 20 NY3d 75, 80-81 [2012], cert denied 569US &mdash, 133 S Ct 1736 [2013]; People v Spears, 94 AD3d 498, 499 [2012], lvdenied 19 NY3d 1001 [2012]). In any event, defendant's right to a public trial wasnot violated because the record reflects that a laptop computer screen was still visible tothe members of the public seated in the courtroom after the overhead projector wasturned off. Contrary to defendant's further contention, we conclude that "the court'sefforts to prevent disruption in the courtroom during [the Medical Examiner]'s sensitivetestimony provides no basis upon which to upset defendant's conviction" (People vGlover, 60 NY2d 783, 785 [1983], cert denied 466 US 975 [1984]; seePeople v Chase, 265 AD2d 844, 844 [1999], lv denied 94 NY2d 902[2000]).
Defendant further contends that the court prevented him from presenting evidence inhis own behalf, and thereby violated his right to present a defense, when it refused toallow defense counsel to cross-examine the Medical Examiner with respect to whetherthe victim could have sustained certain injuries while moving within the vehicle. Wereject that contention, as well as defendant's further contention that the court's rulingconstituted an abuse of discretion. There was an insufficient foundation for defensecounsel's line of questioning, and thus the testimony that defense counsel sought to elicitfrom the Medical Examiner "would have been speculative and misleading" (People v Banks, 33 AD3d385, 385 [2006], lv denied 7 NY3d 923 [2006]; see People v Frazier,233 AD2d 896, 897 [1996]; see also People v Walker, 223 AD2d 414, 415[1996], lv denied 88 NY2d 887 [1996]). In addition, "[t]he minor limitationsimposed by the court precluded repetitive inquiries into possible [causes of the injuries]in hypothetical situations. Defendant [otherwise] received wide latitude to explore thematters about which the [Medical Examiner] had provided expert testimony" (People v Allende, 38 AD3d470, 471 [2007], lv denied 9 NY3d 839 [2007]; see generally Crane vKentucky, 476 US 683, 689-690 [1986]).
Defendant failed to preserve for our review his contention that he was deprived ofhis right to a fair trial because the court improperly denigrated a defense witness bymaking certain comments to the jury (see People v Fudge, 104 AD3d 1169, 1170 [2013], lvdenied 21 NY3d 1042 [2013]; see generally People v Charleston, 56 NY2d886, 887-888 [1982]). In any event, that contention is without merit inasmuch as therecord establishes that the court did not denigrate the defense witness.
[*3] Finally, defendant waived his contentions that thecourt erred in providing the jurors with a verdict sheet for their use during summations,and that the court erred in providing the jurors with a slightly different verdict sheet fortheir use during deliberations, because he consented to the use of those procedures at trial(see People v Hicks, 12AD3d 1044, 1045 [2004], lv denied 4 NY3d 799 [2005]; see also People v Barner, 30AD3d 1091, 1092 [2006], lv denied 7 NY3d 809 [2006]; see generallyPeople v Colon, 90 NY2d 824, 826 [1997]). Present—Smith, J.P., Fahey,Peradotto, Sconiers and Valentino, JJ.