| People v Texidor |
| 2014 NY Slip Op 08466 [123 AD3d 746] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Love Texidor, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove,Thomas M. Ross, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gary, J.), rendered April 19, 2012, convicting her of criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress certain physical evidence.
Ordered that the judgment is affirmed.
The defendant contends that the Supreme Court erred in denying that branch of heromnibus motion which was to suppress a photograph found on her cell phone. Thiscontention is without merit, as the evidence presented at the suppression hearing supportsthe court's conclusion that the defendant voluntarily consented to a search of her cellphone (see People v Gonzalez, 39 NY2d 122, 128 [1976]; People v Dail, 69 AD3d873, 874 [2010]; People vVisich, 57 AD3d 804, 806 [2008]; People v Quagliata, 53 AD3d 670, 672 [2008]; People v Edwards, 46 AD3d698, 699 [2007]).
Alternatively, the defendant contends that she was deprived of a fair trial when theSupreme Court admitted into evidence a photograph found on her cell phone. Initially,this claim is unpreserved for appellate review, as the defendant raised no objection attrial to the introduction of this allegedly prejudicial photograph (see CPL 470.05[2]; People v Donovan, 59 NY2d 834, 836 [1983]; People v Gaines, 158AD2d 540, 540 [1990]). In any event, the claim is without merit. Photographic evidence"should be excluded only if its sole purpose is to arouse the emotions of the jury and toprejudice the defendant" (People v Pobliner, 32 NY2d 356, 370 [1973]; see People v Thomas, 99 AD3d737, 738 [2012]; People vSampson, 67 AD3d 1031, 1032 [2009]). When an inflammatory photograph isrelevant to a material issue at trial, the court has broad discretion to determine whetherthe probative value of the photograph outweighs any prejudice to the defendant (seePeople v Stevens, 76 NY2d 833, 835-836 [1990]; People v Thomas, 99AD3d at 738). Here, the photograph at issue was relevant to material issues in the case,and the Supreme Court did not improvidently exercise its discretion in admitting it intoevidence. Contrary to the defendant's contentions, the photograph was not soinflammatory as to deprive her of a fair trial.
[*2] The defendant's contention that the Supreme Court considered improper factors inimposing sentence is unpreserved for appellate review (see CPL 470.05 [2]; People v Garson, 69 AD3d650, 652 [2010]). While the court accepted a victim impact statement from thealleged victim of a crime of which the defendant was acquitted, under the circumstancesof this case, reversal is not required. There is no indication that the court was undulyinfluenced by that statement (see People v Knapp, 213 AD2d 740, 741-742[1995]; People v Jones, 195 AD2d 482, 483 [1993]). Finally, the sentenceimposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Rivera,J.P., Skelos, Dickerson and Barros, JJ., concur.