| People v Dorcinvil |
| 2014 NY Slip Op 08042 [122 AD3d 874] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jacques Dorcinvil, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, KeithDolan, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(D'Emic, J.), rendered December 16, 2009, convicting him of murder in the seconddegree, attempted murder in the second degree, aggravated criminal contempt (twocounts), assault in the second degree, and assault in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
On January 14, 2007, the defendant beat his girlfriend (hereinafter the victim) with ametal chair and broom, and kicked her then-12-year-old son, while at the victim'sapartment in Brooklyn. The defendant was arrested and an order of protection wasissued, prohibiting the defendant from contacting the victim or her son.
On May 4, 2007, while the order of protection was still in effect, the defendantstabbed the victim's son repeatedly in the neck, head, and body with a butcher knife. Thedefendant also stabbed the victim numerous times in the head, neck, and body with thesame knife. The victim died from her injuries. Subsequently, the defendant wasapprehended in Florida after he attempted to procure a passport.
During the jury trial, the victim's son, who was then 15 years old, testified regardingthe relevant events. At the conclusion of the trial, the defendant was convicted of murderin the second degree, attempted murder in the second degree, two counts of aggravatedcriminal contempt, assault in the second degree, and assault in the third degree. Weconclude that the defendant was not deprived of a fair trial and affirm the judgment ofconviction.
The defendant failed to preserve for appellate review his contention that hisconstitutional right to confront the witnesses against him was violated when DetectiveJoseph Perry testified for the prosecution that, after he spoke with Detective John Briano,who had arrived earlier at the scene of the stabbing, Detective Perry considered thedefendant a suspect (see CPL 470.05 [2]; People v Crawford, 54 AD3d 961, 962 [2008]). In anyevent, this contention is without merit. Although [*2]thejury could have inferred, based on earlier testimony, that Detective Briano told DetectivePerry that the victim's then-12-year-old son had identified the defendant as the personwho repeatedly stabbed him and the victim, the victim's son testified at trial and wassubjected to cross-examination. The defendant's further contentions that the testimonyconstituted impermissible hearsay and bolstering of that witness's identification of thedefendant are also unpreserved for appellate review (see People v Clarke, 65 AD3d 1055, 1056 [2009]; People v Moore, 49 AD3d901, 902 [2008]) and, in any event, without merit. The testimony was properlyadmitted to complete the narrative and explain the sequence of events leading to thedefendant's arrest (see People vReynolds, 46 AD3d 845, 845 [2007]; People v Monroe, 216 AD2d 494,494 [1995]; see also People vJaen, 116 AD3d 975, 976 [2014]; People v Edwards, 65 AD3d 1374, 1374 [2009]; People v Croswell, 63 AD3d754, 754 [2009]).
The defendant also failed to preserve for appellate review his contention thatDetective Perry's testimony that the police received numerous tips to a hotline wasimproperly admitted since it constituted impermissible hearsay and violated his right toconfrontation (see People vBonds, 118 AD3d 717, 718 [2014]; People v Marino, 21 AD3d 430, 431 [2005]). In any event,this contention is without merit, as the testimony was properly admitted to complete thenarrative and explain the course of the police investigation (see People v Monroe,216 AD2d at 494). Moreover, since no statements were elicited, the testimony did notviolate the defendant's right to confrontation (cf. People v McEaddy, 41 AD3d 877, 878-879[2007]).
Contrary to the defendant's contention, the Supreme Court did not improvidentlyexercise its discretion in admitting into evidence a photograph of the victim's bloodybody. Photographic evidence "should be excluded only if its sole purpose is to arouse theemotions of the jury and to prejudice the defendant" (People v Pobliner, 32NY2d 356, 370 [1973]; see People v Stevens, 76 NY2d 833, 835 [1990]; People v Thompson, 108AD3d 732, 733 [2013]; People v Thomas, 99 AD3d 737, 738 [2012]). Here, thephotograph was not offered for the sole purpose of arousing the emotions of the jurors(see People v Sampson, 67AD3d 1031, 1032 [2009]). Moreover, the photograph was not so inflammatory as tohave deprived the defendant of a fair trial (see People v Thompson, 108 AD3d at733; People v Thomas, 99 AD3d at 738).
The defendant contends that the Supreme Court erred in permitting Detective Perryto testify that he ran "computer checks" on the defendant and learned of "pastcomplaints" and the defendant's "[p]ast arrests" (see generally People v Alvino,71 NY2d 233, 241 [1987]). The defendant also contends that the court erred in denyinghis application for a missing witness charge with respect to Detective Briano. Any errorsin this regard were harmless, as there was overwhelming evidence of the defendant'sguilt and no significant probability that the errors contributed to the defendant'sconvictions (see People vAddison, 107 AD3d 730, 731 [2013]).
The defendant's contention that the prosecutor made improper comments duringsummation is unpreserved for appellate review, as he failed to object to any of thechallenged comments (see CPL 470.05 [2]; People v Alleyne, 114 AD3d 804, 805 [2014]). In anyevent, any error in this regard was harmless, as the evidence of the defendant's guilt wasoverwhelming, and there was no significant probability that the error contributed to thedefendant's convictions (see People v Alleyne, 114 AD3d at 805; People v Smith, 36 AD3d836, 836-837 [2007]; People v Rodriguez, 28 AD3d 496, 496-497 [2006]).
The defendant's contention that the Supreme Court improperly permitted the victim'sthen-15-year-old son to testify at trial, raised in point I of his pro se supplemental brief, iswithout merit. His further contention, raised in point I of his pro se supplemental brief,that the court erred in denying his request for that witness's psychological records, is notproperly before this Court as it is based on matter dehors the record on appeal (see People v Boley, 116 AD3d965, 965 [2014]).
The defendant's contentions, raised in point II of his pro se supplemental brief, thatthe Supreme Court improperly admitted a video showing the victim and improperlyadmitted a photograph of the victim while still alive are unpreserved for appellate reviewand, in any event, without merit. The defendant's contention, raised in point II of his prose supplemental brief, that the court improperly admitted two arrest photographs of himis without merit.
[*3] The defendant'scontention, raised in point III of his pro se supplemental brief, that the Supreme Courterred in denying his motion to sever the trial on the ground that the incidents underlyingthe indictment which occurred on January 14, 2007, and on May 4, 2007, constitutedseparate criminal transactions is without merit (see People v Thompson, 119 AD3d 966 [2014]; People v Dayton, 66 AD3d797, 797 [2009]).
The defendant's contention, raised in point IV of his pro se supplemental brief, thatthe Supreme Court erred in permitting the People to elicit certain testimony that violatedthe court's suppression ruling and constituted impermissible hearsay and bolstering isunpreserved for appellate review and, in any event, without merit.
The defendant's contention, raised in his main brief and in point v of his pro sesupplemental brief, that he was deprived of the constitutional right to the effectiveassistance of counsel is based, in part, on matter appearing on the record and, in part, onmatter outside the record and, thus, constitutes a "mixed claim" of ineffective assistance(see People v Addison, 107AD3d 730, 732 [2013]). Since the defendant's claim of ineffective assistance ofcounsel cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see id.at 732).
The defendant's contention that he was deprived of a fair trial by the cumulativeeffect of the alleged errors is without merit. Dickerson, J.P., Leventhal, Sgroi andLaSalle, JJ., concur. [Prior Case History: 25 Misc 3d 1215(A), 2009 NY Slip Op52105(U).]