| People v Raysor |
| 2015 NY Slip Op 06374 [130 AD3d 1079] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Donovan Raysor, Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Miller of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Hinrichs, J.), rendered January 25, 2011, convicting him of murder in the first degreeand conspiracy in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved to the extent he argues that the testimony of an accomplicewas insufficiently corroborated (see CPL 470.05 [2]; People v Demolaire, 55 AD3d621, 622 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Thetestimony of the accomplice was sufficiently corroborated by, among other things, phonerecords, surveillance videos, and the defendant's own statements (see People v Mazyck, 118AD3d 728, 729 [2014]; People v Vantassel, 95 AD3d 907, 907-908 [2012]).Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the prosecutor made improper comments onsummation is unpreserved for appellate review (see People Herring, 119 AD3d958, 958-959 [2014]; People vAlleyne, 114 AD3d 804, 805 [2014]). In any event, any error does not requirereversal (see People vGopaul, 112 AD3d 966, 967 [2013]; People v Brooks, 89 AD3d 746 [2011]).
The Supreme Court providently exercised its discretion in permitting the People topresent the testimony of the chief of the District Attorney's homicide bureau. Contrary tothe defendant's contention, her testimony did not impermissibly bolster the testimony ofthe defendant's accomplice. Rather, it was relevant to clarify the terms of a cooperationagreement between the District Attorney and the accomplice, which had become unclearduring cross-examination of the [*2]accomplice.
The Supreme Court providently exercised its discretion in denying the defendant'smotion for a mistrial after the prosecutor asked a detective who interviewed thedefendant following his arrest whether the detective believed the defendant when he saidthat he conspired to rob, but not kill, the victim, and the detective replied that he did not.Although the question was improper (see People v Allen, 222 AD2d 441, 442[1995]), the defendant was not unduly prejudiced by the question, since the testimonywas brief and the court sustained an objection to the question, immediately struck thetestimony from the record, and gave a curative instruction to the jury (see People v Reaves, 112AD3d 746, 747-748 [2013]; People v Brown, 76 AD3d 532, 533 [2010]).
The Supreme Court properly admitted certain testimony by the victim's wife pursuantto the state-of-mind exception to the hearsay rule (see People v Borukhova, 89 AD3d 194, 220 [2011];People v Malizia, 92 AD2d 154, 160 [1983], affd 62 NY2d 755 [1984]).The defendant's contention that the Supreme Court erred in admitting certain testimonypursuant to the co-conspirator's exception to the hearsay rule is unpreserved for appellatereview (see CPL 470.05 [2]) and, in any event, without merit (see People v Caban, 5 NY3d143, 151 [2005]; People vGreen, 92 AD3d 953, 956 [2012]).
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that the Supreme Court erred in denying his motion for a mistrial on theground that the prosecutor improperly showed a witness, who had not identified thedefendant in court, photographs purportedly depicting the defendant, and asked if thewitness could identify the person in the photographs (see CPL 470.05 [2]; People v Licausi, 122 AD3d771, 773 [2014]). However, the defendant's contention is without merit. The witnessmerely identified the person in the photographs as the person who bought a watch fromhim on the day in question, and did not identify the person in the photographs as thedefendant. Moreover, the testimony was stricken, and the photographs were not admittedinto evidence and were not seen by the jury. Accordingly, the Supreme Court did notimprovidently exercise its discretion in denying the defendant's motion for a mistrial onthis ground.
The Supreme Court did not improvidently exercise its discretion in admitting DVDscontaining certain surveillance videos, as the People presented sufficient evidence thatthe videos truly and accurately represented what was before the camera (see People vPatterson, 93 NY2d 80, 84 [1999]; People v Costello, 128 AD3d 848 [2015]).
The remaining contention raised in the defendant's main brief is without merit. Thecontentions raised in points I and III of the defendant's pro se supplemental brief arewithout merit. The contentions raised in points II and IV of the defendant's pro sesupplemental brief are unpreserved for appellate review and, in any event, without merit.Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.