| People v Vining |
| 2015 NY Slip Op 02570 [126 AD3d 623] |
| March 26, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Vining, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), renderedJuly 18, 2012, convicting defendant, after a jury trial, of attempted assault in the thirddegree, assault in the third degree, criminal mischief in the fourth degree, and criminaltrespass in the second degree, and sentencing him to an aggregate term of two years,unanimously modified, on the law, to the extent of vacating the attempted assaultconviction and dismissing that count of the indictment, and otherwise affirmed.
The court properly exercised its discretion in admitting a phone call placed bydefendant to the victim while defendant was incarcerated, in which the victim repeatedlystated that defendant had broken her ribs. The record supports the court's findings thatdefendant heard and understood the victim's accusation, and that a person in defendant'sposition would have been expected to answer (see People v Koerner, 154 NY355, 374 [1897]; People v Frias, 250 AD2d 495 [1st Dept 1998], lv denied92 NY2d 982 [1998]). Rather than directly addressing the victim's statement,defendant repeatedly attempted to change the subject, such as by asking the victimwhether she meant that he posed a "threat" to her. It is not dispositive that defendantasked the victim to repeat herself after the fourth out of five times she stated that he hadbroken her ribs, since defendant did not otherwise indicate that he was unable to hear orunderstood her. Although the phone call was recorded by the Department of Correctionpursuant to a standard policy made known to all inmates, the rule excluding "silence inthe face of police interrogation" (People v De George, 73 NY2d 614, 618 [1989])was not implicated, since defendant's admissions by silence were made to a civilian.Moreover, the court's thorough limiting instructions also minimized any potential unfairprejudice.
The court should have granted defendant's request to redact the portion of the phonecall in which both defendant and the victim referred to the particular sentence theyexpected defendant to receive in the event of a conviction. However, we find the error tobe harmless in light of the court's thorough instructions.
The court's brief response to the jury note provides no basis for reversal where thecourt immediately repeated its charge on the criminal trespass counts (see People v Simmons, 66AD3d 292 [1st Dept 2009], affd 15 NY3d 728 [2010]; see also People v Jackson, 38AD3d 1052, 1054 [3d Dept 2007], lv denied 8 NY3d 986 [2007]).
We find that the court's inquiry about a partial verdict did not have any coercive orprejudicial effect and did not contravene CPL 310.70 (see e.g. People v Brown, 1AD3d 147 [1st Dept 2003], lv denied 1 NY3d 625 [2004]; People vMendez, 221 AD2d 162, 163 [1st Dept 1995], lv denied 87 NY2d 923[1996]).
[*2] As the People concede, theattempted third-degree assault count is a lesser included offense of the third-degreeassault count. Concur—Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman,JJ.