| People v Racks |
| 2015 NY Slip Op 00913 [125 AD3d 692] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Teddy Racks, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andSolomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered October 9, 2012, convicting him of criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court excused potential jurors basedupon hardship without conducting a sufficient inquiry is unpreserved for appellatereview (see People vJohnson, 116 AD3d 883 [2014]; People v Harris, 115 AD3d 761, 762 [2014]; People v Miller, 112 AD3d856 [2013]; People vKing, 110 AD3d 1005 [2013]; People v Umana, 76 AD3d 1111, 1112 [2010]; People v Toussaint, 40 AD3d1017, 1017-1018 [2007]) and, in any event, is without merit (see People v Casanova, 62AD3d 88, 90-92 [2009]; People v Christian, 309 AD2d 527, 528 [2003]; see also People v Heckstall, 45AD3d 907, 908 [2007]; People v Mulinar, 185 AD2d 996, 997 [1992]; but see People v Roblee, 70AD3d 225, 228-230 [2009]).
Because the People failed to demonstrate that the complaining witness was notwithin their control, the Supreme Court erred in declining to give a missing-witnesscharge with respect to the People's failure to call him (see People v Brown, 4AD3d 790 [2004]; Matter of Ismael S., 213 AD2d 169, 173 [1995]; see also People v Onyia, 70AD3d 1202, 1205 [2010]). However, at trial, inter alia, another witness stated thatshe saw the complaining witness and the defendant, who had a gun in his hand, in thehallway of her building, "arguing really loud[ly]." The witness walked away, andmoments later she heard two gunshots. In addition, video footage from security camerasin the building showed the defendant with a gun in his hand. Thus, the error washarmless, as there was overwhelming evidence of the defendant's guilt of both counts ofcriminal possession of a weapon in the second degree, and no significant probability thatthe error contributed to the defendant's convictions (see People v Crimmins, 36NY2d 230, 237 [1975]; Peoplev Wilson, 115 AD3d 891, 891-892 [2014]; People v Williams, 99 AD3d 955, 956 [2012]; People vMorgan, 228 AD2d 704, 705 [1996]).
The Supreme Court erred in admitting testimony by the People's ballistics expertwhich did not "help[ ] to 'clarify an issue calling for professional or technical knowledge,possessed by the expert and beyond the ken of the typical juror' " (People v Diaz, 20 NY3d569, 575 [2013], quoting [*2]De Long v Countyof Erie, 60 NY2d 296, 307 [1983]; see People v Gopaul, 112 AD3d 966 [2013]), and inpermitting an eyewitness to testify to her prior consistent statement. However, theseerrors were harmless, as there was overwhelming evidence of the defendant's guilt, andno significant probability that the errors contributed to the defendant's conviction (see People v Rivers, 18 NY3d222, 228 [2011]; People v Crimmins, 36 NY2d at 237; People v Morales, 89 AD3d1111, 1111-1112 [2011]; People v Parker, 74 AD3d 1365, 1365-1366 [2010]).Moreover, the cumulative effect of the Supreme Court's errors did not deprive thedefendant of a fair trial.
Contrary to the defendant's contention, the court properly admitted a recording of atelephone call placed from Rikers Island using his inmate case booking number and PIN." 'The predicate for admission of tape recordings in evidence is clear andconvincing proof that the tapes are genuine and that they have not been altered' "(Grucci v Grucci, 20 NY3d893, 897 [2012], quoting People v Ely, 68 NY2d 520, 522 [1986]). Here, theRikers Island records custodian presented evidence providing the required foundation.Although she conceded it would have been possible for another inmate to borrow thedefendant's case booking number and PIN to place a call, that concession went only tothe weight of the evidence, not its admissibility. Leventhal, J.P., Hall, Austin and Sgroi,JJ., concur.