| People v Mulligan |
| 2014 NY Slip Op 04588 [118 AD3d 1372] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEdwin L. Mulligan, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Edwin L. Mulligan, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Brian M. McCarthy, J.),rendered September 4, 2009. The judgment convicted defendant, upon a jury verdict, ofattempted murder in the second degree, assault in the first degree, criminal possession ofa weapon in the second degree (two counts), criminal possession of a weapon in the thirddegree and endangering the welfare of a child.
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, attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]) and two counts of criminal possession of aweapon in the second degree (§ 265.03 [1] [b]; [3]). During the trial,County Court admitted in evidence a 911 recording containing several statements thatwere made approximately two minutes after the shooting that resulted in the chargesherein. During the recording, a witness stated that he had found the victim after she hadbeen shot, and that the victim was conscious but did not know where she had been shot.The 911 operator asked the witness who had shot the victim, and the witness initiallyresponded, "I guess her boyfriend." The witness then asked the victim to identify theshooter, the victim responded by identifying defendant, and the witness repeated thatresponse to the 911 operator.
We reject defendant's contention that the court erred in admitting in evidence thevictim's statements on the 911 recording under the excited utterance exception to thehearsay rule. In determining whether to admit such statements in evidence, "it isnecessary to review the facts of the case to consider the atmosphere surrounding thestatements and thus determine whether they were precipitated by the subject event"(People v Norton, 164 AD2d 343, 353 [1990], affd 79 NY2d 808[1991]). The fact "[t]hat statements were made in response to an inquiry does notdisqualify them as excited utterances but rather is a fact to be considered by the trialcourt" (People v Cotto, 92 NY2d 68, 79 [1998]). Here, the evidence in the recordestablishes that the victim was shot four times in front of her 14-month-old toddler, andthe statements at issue were made within minutes of that incident. Moreover, during themedical treatment administered at the scene shortly after the 911 call, the victim "wascrying out that she didn't want to die." We agree with the People that such evidenceestablishes that the victim " 'spoke while under the stress or influence of theexcitement caused by the event, so that [her] reflective capacity was stilled'. . . The spontaneity of the declaration guarantee[d] its trustworthiness andreliability" (People vCantave, 21 NY3d 374, 381 [2013]).
We agree with defendant, however, that the court erred in admitting in evidence thestatement of the witness identifying defendant as the shooter under the present senseimpression exception to the hearsay rule. It is well settled that, in order "[t]o qualify as apresent sense impression, the out-of-court statement must be (1) made by a personperceiving the event as it is unfolding or immediately afterward . . . , and (2)corroborated by independent evidence establishing the reliability of the contents of thestatement" (id. at 382). Here, the witness did not see the shooting, and heconfirmed defendant's identity as the shooter only after questioning the victim (seePeople v Vasquez, 88 NY2d 561, 580 [1996]; see also People v Brown, 104 AD3d 1203, 1204 [2013],lv denied 21 NY3d 1014 [2013]). Therefore, the witness's statement was notadmissible as a present sense impression, and we conclude that the admission of thatstatement in evidence improperly bolstered the victim's identification of defendant as theshooter (see People vSpencer, 96 AD3d 1552, 1553 [2012], lv denied 19 NY3d 1029 [2012],reconsideration denied 20 NY3d 989 [2012]; see generally People v Smith, 22 NY3d 462, 465-467[2013]). We conclude, however, that the court's error "is harmless because the 'proof of[defendant's] guilt was overwhelming . . . and . . . there was nosignificant probability that the jury would have acquitted [him] had the proscribedevidence not been introduced' " (Spencer, 96 AD3d at 1553, quotingPeople v Kello, 96 NY2d 740, 744 [2001]; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]).
Defendant's further contention that the court erred in admitting in evidence thetestimony of a police officer that bolstered the victim's identification of defendant lacksmerit inasmuch as that testimony provided a narrative of the events leading to defendant'sarrest (see e.g. People vPerry, 62 AD3d 1260, 1261 [2009], lv denied 12 NY3d 919 [2009]; People v Mendoza, 35 AD3d507, 507 [2006], lv denied 8 NY3d 987 [2007]; People v Smalls, 293AD2d 500, 501 [2002], lv denied 98 NY2d 681 [2002]). In any event, any sucherror is harmless (see generally Crimmins, 36 NY2d at 241-242), particularly inview "of the 'clear and strong' identification of defendant by the victim and the otherevidence of defendant's guilt" (People v Simms, 244 AD2d 920, 920-921 [1997],lv denied 91 NY2d 897 [1998]; see People v McCullen, 63 AD3d 1708, 1709 [2009], lvdenied 13 NY3d 747 [2009]; People v Cunningham, 233 AD2d 845, 846[1996], lv denied 89 NY2d 1091 [1997]).
Defendant's contention that he was denied a fair trial by prosecutorial misconductbecause the prosecutor attempted to mislead the jury on the issue whether the victim waswearing a winter coat when she was shot is not preserved for our review (see People v Golson, 93 AD3d1218, 1219-1220 [2012], lv denied 19 NY3d 864 [2012]; see generally People v Rogers,103 AD3d 1150, 1154 [2013], lv denied 21 NY3d 946 [2013]) and, in anyevent, that contention lacks merit. Although a " 'prosecutor has a duty to correcttrial testimony if he or she knows that it is false' " (People v McDuffie, 77 AD3d1360, 1361 [2010], lv denied 16 NY3d 833 [2011]; see People vSavvides, 1 NY2d 554, 556-557 [1956]), the record does not establish that theprosecutor elicited false testimony or misled the jury (see generally People v Kirk, 96 AD3d 1354, 1359 [2012],lv denied 20 NY3d 1012 [2013]).
Defendant contends that the prosecutor also engaged in misconduct bycross-examining him regarding his failure to contact the police after the shooting, therebyinfringing upon his right to remain silent, and then engaged in further misconduct bycommenting on that failure during summation. Those contentions are preserved for ourreview only to the extent that defendant objected to parts of the prosecutor's summation.In any event, contrary to defendant's contention regarding cross-examination, "[t]hePeople's primary focus was on defendant's conduct, to wit, his flight and his failure toseek aid for the victim [and their child], rather than [defendant's] silence . . .Moreover, defendant's failure to contact the police was admissible as inconsistent withhis defense" (People v Guzman, 259 AD2d 364, 365 [1999], lv denied 93NY2d 925 [1999]; see generally People v Rothschild, 35 NY2d 355, 360-361[1974]). We further conclude that the disputed parts of the People's summation were faircomment upon the evidence (see People v Ashwal, 39 NY2d 105, 109-110[1976]). We reject defendant's related contention that he was denied meaningfulrepresentation based on defense counsel's failure to preserve for our review the issue ofprosecutorial misconduct in its entirety. An attorney's "failure to 'make a motion orargument that has little or no chance of success' " does not amount to ineffectiveassistance (People v Caban,5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004]). For the reasonsdiscussed above, the prosecutor's cross-examination of defendant on the subject of hisfailure to contact police was proper and thus any argument to the contrary had "little orno chance of success" (id.). We further conclude that defendant was not deprivedof a fair trial by the cumulative effect of the errors alleged herein (see People v Snyder, 100AD3d 1367, 1370 [2012], lv denied 21 NY3d 1010 [2013]; People v McKnight, 55 AD3d1315, 1317 [2008], lv denied 11 NY3d 927 [2009]).
Defendant further contends in his main and pro se supplemental briefs that theconviction is not supported by legally sufficient evidence and that the verdict is contraryto the weight of the evidence, basing both contentions primarily on his challenge to thevictim's credibility. We reject those contentions. The victim "did not provide internallyinconsistent testimony, and she was not the source of all of the evidence of [defendant's]guilt" (People v Hampton,21 NY3d 277, 288 [2013] [internal quotation marks omitted]). Viewing the evidencein the light most favorable to the People (see People v Williams, 84 NY2d 925,926 [1994]), we conclude that it is legally sufficient to support the conviction of thecrimes charged (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Furthermore, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we also conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495)."[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we see no basis for disturbing the jury's resolution of thoseissues.
Defendant further contends that the court erred in failing to issue a decision on thoseparts of his omnibus motion seeking suppression of evidence found by the police duringsearches of his house and vehicle pursuant to a search warrant. In his motion, defendantcontended that his constitutional rights were violated by the searches because the courtlacked probable cause to issue the warrant. On the initial date that the court set forargument of the motions, the court indicated that it would review the search warrantapplication and the search warrants. At the start of the trial, defense counsel argued othermotions and obtained rulings on other applications such as his Sandoval request,but he did not seek to argue the suppression motion. In addition, defense counsel did notrespond when the court inquired whether there were "any other issues we may need totalk about before we bring the jury up," nor did he object when the evidence seized as aresult of those searches was admitted in evidence at trial. "Because defendant failed toseek a ruling on those parts of his omnibus motion concerning the alleged[constitutional] violation . . . or to object to the admission of [that] evidenceat trial, we conclude that defendant abandoned his contention[ ] that [the court] erred inrefusing to suppress [the evidence] on those grounds" (People v Nix, 78 AD3d1698, 1699 [2010], lv denied 16 NY3d 799 [2011], cert denied 565US &mdash, 132 S Ct 157 [2011]; see People v Anderson, 52 AD3d 1320, 1320-1321 [2008],lv denied 11 NY3d 733 [2008]).
We have considered defendant's remaining contentions in both his main and pro sesupplemental briefs, and we conclude that they are without merit. Present—Smith,J.P., Fahey, Carni, Sconiers and Valentino, JJ.