| People v Viera |
| 2015 NY Slip Op 07998 [133 AD3d 622] |
| November 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terell Viera, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andDiane R. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Firetog, J.), rendered May 5, 2011, convicting him of manslaughter in the first degree,criminal possession of a weapon in the second degree, and bribery in the third degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of the defendant's application to permit defense counsel to review thepsychiatric records of one of the People's witnesses.
Ordered that the judgment is affirmed.
The defendant was convicted of, inter alia, manslaughter in the first degree for theshooting death of Elsmaker Iverson on November 2, 2008. Prior to trial, the defendantsought leave to review the psychiatric records of the sole identification witness and touse those records at trial to cross-examine that witness regarding his purported mentalhealth issues. The Supreme Court, after reviewing the records in camera, declined toallow defense counsel to review those documents and subsequently struck a series ofquestions on cross-examination by defense counsel regarding the witness's purportedmental health diagnosis, on the basis that defense counsel lacked a good faith basis forthe questions.
The defendant's contention that the Supreme Court deprived him of a fair trial bydenying his request to access and review the psychiatric records and precluding him fromusing those records to cross-examine the witness is without merit. While the right of anaccused to confront the witnesses against him through cross-examination is aconstitutional right (see US Const 6th, 14th Amends; NY Const, art I,§ 6; Davis v Alaska, 415 US 308 [1974]; Douglas vAlabama, 380 US 415 [1965]; Pointer v Texas, 380 US 400 [1965];People v Parker, 57 NY2d 136, 139 [1982]) and "the principal means by whichthe believability of a witness and the truth of his testimony are tested" (Davis vAlaska, 415 US at 316), that right must be balanced against the witness's need forconfidentiality (see People v Baranek, 287 AD2d 74, 78 [2001]; People vArnold, 177 AD2d 633 [1991]).
Psychiatric records are confidential, but they may be disclosed upon a finding by thecourt that the interests of justice significantly outweigh the need for confidentiality(see People v [*2]Brooks, 199 AD2d 275 [1993];People v Arnold, 177 AD2d at 634). The proper procedure in such a case is forthe court to order production of the records and to inspect them in camera (see Peoplev Gissendanner, 48 NY2d 543, 550 [1979]; People v Knowell, 127 AD2d794 [1987]).
Here, the Supreme Court, after inspecting the records in camera, properly balancedthe interests of justice against the witness's need for confidentiality and providentlyexercised its discretion in denying the defendant's application for disclosure of therecords and use of the records in cross-examination (see People v Bird, 284AD2d 339 [2001]; People v Arnold, 177 AD2d at 634-635; see also People vMileto, 290 AD2d 877 [2002]; People v Toledo, 270 AD2d 805[2000]).
Also prior to trial, the People sought leave to introduce certain evidence on theirdirect case regarding the defendant's alleged involvement in a plot to shoot a prosecutionwitness who had identified the defendant as the perpetrator of the shooting of Iverson.The plot against the prosecution witness was carried out by two men; one of the men wasthe defendant's brother, and the other was a member of a gang of which the defendantwas a member. The defendant objected that this was impermissible evidence of anuncharged crime. The Supreme Court permitted the prosecutor to elicit the evidence asprobative of the defendant's consciousness of guilt. The defendant contends that he wasdeprived of his due process right to a fair trial when the Supreme Court permitted thePeople to elicit evidence of the uncharged shooting of the prosecution witness and thedefendant's alleged gang membership, in combination with certain testimony from apolice witness regarding the defendant's postarrest silence.
Contrary to the defendant's contentions, the Supreme Court did not improvidentlyexercise its discretion when it permitted the prosecution witness to testify to thecircumstances leading up to and culminating in him being shot by two persons directlyconnected to the defendant. "Certain post crime conduct is [viewed as] 'indicative ofconsciousness of guilt, and hence of guilt itself' " (People v Bennett, 79NY2d 464, 469 [1992], quoting People v Reddy, 261 NY 479, 486 [1933]).Consciousness of guilt evidence includes evidence of coercion and harassment ofwitnesses (see People v Bennett, 79 NY2d at 470; People v Christiani, 96 AD3d870, 871-872 [2012]; People v Myrick, 31 AD3d 668, 669 [2006]) and"[e]vidence that a third party threatened a witness with respect to testifying at a criminaltrial is admissible where there is at least circumstantial evidence linking the defendant tothe threat" (People v Myrick, 31 AD3d at 669; see People v Spruill, 299AD2d 374, 375 [2002]; People v Kornegay, 164 AD2d 868, 868 [1990]).
Here, there was sufficient circumstantial evidence linking the defendant to the plot toshoot the witness (see People vAnderson, 76 AD3d 980, 981 [2010]; People v Arguinzoni, 48 AD3d 1239, 1240 [2008];People v Myrick, 31 AD3d at 669; People v Spruill, 299 AD2d at 374)and the evidence of the defendant's gang membership was relevant to establish therelationship between the actors (see People v Guevara, 96 AD3d 781 [2012]; People v Devers, 82 AD3d1261 [2011]; People vJordan, 74 AD3d 986 [2010]; People v Flores, 46 AD3d 570 [2007]; People v Ramirez, 23 AD3d500 [2005]). Under the circumstances, the probative value of the evidence as to thedefendant's consciousness of guilt outweighed the prejudice (see People v Case, 113 AD3d872, 873 [2014]; People v Anderson, 76 AD3d at 981).
Although the Supreme Court erred by permitting the People, during their direct case,to introduce police testimony that the defendant, after being advised of hisMiranda (Miranda v Arizona, 384 US 436 [1966]) rights, initially agreedto speak with the police but, thereafter, invoked his right to remain silent (see Peoplev Von Werne, 41 NY2d 584, 588 [1977]; People v Scalerico, 140 AD2d 386[1988]; cf. People v Hendricks, 222 AD2d 74 [1996]), this error was harmless, inlight of the overwhelming evidence of the defendant's guilt and the fact that there was noreasonable possibility that the error contributed to the defendant's conviction (seePeople v Crimmins, 36 NY2d 230, 237 [1975]). Moreover, this error did not deprivethe defendant of a fair trial.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review and, in any event, without merit.Hall, J.P., Sgroi, Cohen and Maltese, JJ., concur.