| People v Leach |
| 2016 NY Slip Op 02378 [137 AD3d 1300] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Avone Leach, Appellant. |
Seymour W. James, Jr., New York, NY (David Crow and Cleary Gottlieb Steen& Hamilton LLP [Jennifer Kennedy Park and Gregory Wolfe], of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E.Ross, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dwyer, J.), rendered November 8, 2013, convicting him of strangulation in the seconddegree, assault in the third degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
As the result of a domestic incident, the defendant was charged with and convictedof strangulation in the second degree, assault in the third degree, and criminal possessionof a weapon in the third degree. The defendant contends that statements the complainantmade to police officers at a station house were improperly admitted as excited utterances.Contrary to the People's contention, this claim is preserved for appellate review(see CPL 470.05 [2]). "An out-of-court statement is properly admissible underthe excited utterance exception when made under the stress of excitement caused by anexternal event, and not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d302, 306 [2003]). "The essential element of this hearsay exception is that thedeclarant spoke while under the stress or influence of the excitement caused by the event,so that his [or her] reflective capacity was stilled" (People v Cantave, 21 NY3d 374, 381 [2013] [internalquotation marks omitted]). Here, in light of the amount of time that elapsed between theincident and the statements, the complainant's condition when she arrived at the stationhouse, and her coherent narrative and responses to questions posed, it cannot be said thatthe complainant's capacity for reflection and deliberation remained stilled by the time shespoke to the police officers at the station house (see People v Johnson, 1 NY3d 302 [2003]). Accordingly,those statements were improperly admitted under the excited utterance exception to thehearsay rule. However, the error in admitting those statements was harmless in light ofthe overwhelming evidence of the defendant's guilt without reference to the error and theabsence of any significant probability that the error might have contributed to thedefendant's convictions (see People v Crimmins, 36 NY2d 230 [1975]).
The defendant's contention that his constitutional right to confrontation was violatedbecause the jury viewed unredacted medical records of the complainant is unpreservedfor appellate [*2]review (see CPL 470.05 [2]). Inany event, since the complainant testified at trial, there was no deprivation of thedefendant's constitutional right to confrontation (see Crawford v Washington,541 US 36, 59 n 9 [2004]; People v Leon, 98 AD3d 1065 [2012]). Moreover, theobjected-to portions of the unredacted medical records contained in social workassessment notes and in a social history, which made reference to ongoing domesticviolence, were properly admitted as relevant to diagnosis and treatment (see People v Ortega, 15 NY3d610 [2010]; People vLivrieri, 125 AD3d 579 [2015]; People v Pham, 118 AD3d 1159 [2014]; People v Greenlee, 70 AD3d966 [2010]).
Contrary to the People's contention, the defendant's claim that an emergency roomnurse was not qualified to give opinion testimony is preserved for appellate review(see CPL 470.05 [2]). However, contrary to the defendant's contention, the nursewas properly qualified as an expert in the field of emergency medical care, and hertestimony did not go beyond her training, education, knowledge, or experience (see People v Menendez, 50AD3d 1061 [2008]; Peoplev Lewis, 16 AD3d 173 [2005]).
The defendant's claim that certain of the prosecutor's summation remarks deprivedhim of a fair trial is unpreserved for appellate review (see CPL 470.05 [2]). Inany event, some of the challenged portions of the prosecutor's summation were withinthe bounds of permissible comment, fair response to the defendant's attack on thecredibility of the complainant, fair comment on the evidence and the reasonableinferences to be drawn therefrom, or permissible rhetorical comment (see People vHalm, 81 NY2d 819 [1993]; People v Ashwal, 39 NY2d 105 [1976]; People v Ramrattan, 126 AD3d1013 [2015]; People vPersaud, 98 AD3d 527 [2012]). The remaining challenged remarks, althoughimproper, were not so flagrant or pervasive so as to deprive the defendant of a fair trial(see People v Persaud, 98AD3d 527 [2012]; People vRogers, 92 AD3d 903 [2012]; People v Banyan, 60 AD3d 861 [2009]; see also People v Wragg, 26NY3d 403 [2015]).
The defendant's contention that his conviction of strangulation in the second degreewas not supported by legally sufficient evidence is unpreserved for appellate review(see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of strangulation in the second degree beyond a reasonable doubt (seePenal Law § 121.12; People v Peterson, 118 AD3d 1151 [2014]; Matter of Jesse Z., 116 AD3d1105 [2014]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt on the count ofstrangulation in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
A defendant is constitutionally entitled to the effective assistance of counsel (see People v Wright, 25 NY3d769, 779 [2015]). To establish ineffective assistance of counsel under the federalconstitution, a "defendant must show that counsel's performance was deficient," and "thatthe deficient performance prejudiced the defense" (Strickland v Washington, 466US 668, 687 [1984]). Under the New York Constitution, "[s]o long as the evidence, thelaw, and the circumstances of a particular case, viewed in totality and as of the time ofthe representation, reveal that the attorney provided meaningful representation, theconstitutional requirement will have been met" (People v Baldi, 54 NY2d 137,147 [1981]; see People v Wright, 25 NY3d at 779; see also People v Wragg, 26NY3d 403 [2015]). Although that inquiry "focuses on the quality of therepresentation provided to the accused, the claim of ineffectiveness is ultimatelyconcerned with the fairness of the process as a whole rather than its particular impact onthe outcome of the case" (People v Benevento, 91 NY2d 708, 714 [1998]; seePeople v Wright, 25 NY3d at 779). Here, viewing counsel's representation in itstotality, we conclude that the defendant was not deprived of the effective assistance ofcounsel (see People vWragg, 26 NY3d 403 [2015]). Mastro, J.P., Dillon, Miller and Barros, JJ.,concur.