| People v Morris |
| 2016 NY Slip Op 03297 [138 AD3d 1408] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDarshawn A. Morris, Also Known as Slink, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Caitlin M. Connelly of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered May 14, 2014. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, rape in the second degree and criminal sexual act in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of murder in the second degree (Penal Law § 125.25 [1]), rape in thesecond degree (§ 130.30 [1]), and criminal sexual act in the second degree(§ 130.45 [1]). Defendant failed to preserve for our review his contentionthat the evidence is legally insufficient to support the murder conviction (see People v Cobb, 72 AD3d1565, 1565 [2010], lv denied 15 NY3d 803 [2010]). In any event, weconclude that the conviction is supported by legally sufficient evidence with respect to allof the crimes charged (see People v Bleakley, 69 NY2d 490, 495 [1987]).Contrary to defendant's further contention, viewing the evidence in light of the elementsof the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seeBleakley, 69 NY2d at 495).
Contrary to defendant's contention, the verdict sheet, with the inclusion ofdefendant's nickname—"Slink"—was not substantively annotated in amanner not authorized by CPL 310.20 (2) (see People v Miller, 18 NY3d 704, 706 [2012]).Furthermore, Supreme Court properly denied defendant's Batson applicationinasmuch as the prosecutor clearly provided a race-neutral basis for the challenge, i.e.,that the decision-making ability of the prospective juror might be affected by the fact thather aunt had been murdered and that she herself had previous encounters with thecriminal justice system (see People v Dixon, 202 AD2d 12, 17-18 [1994]).
We reject defendant's contention that his Miranda waiver was involuntary. Althoughthe evidence establishes that defendant had left an emergency psychiatric unit beforewaiving his rights, there is no evidence that defendant was mentally ill or otherwiseimpaired during his interrogation (see People v Williams, 279 AD2d 276, 277 [2001],affd 97 NY2d 735 [2002]) and, "under the totality of the circumstances," we concludethat defendant's statements were knowingly, intelligently, and voluntarily made (id. at276-277; see People v Love, 57 NY2d 998, 999 [1982]).
Contrary to defendant's contention, the court did not abuse its discretion in admittingin evidence eight photographs of the victim's body. Although the photographs" 'portray[ed] a gruesome spectacle and may [have] tend[ed] to arouse passionand resentment against the defendant in the minds of the jury,' " it cannot be saidthat such was their "sole purpose" inasmuch as the photographs tended to prove, interalia, defendant's intent to kill (People v Pobliner, 32 NY2d 356, 369-370 [1973],rearg denied 33 NY2d 657 [1973], cert denied 416 US 905 [1974];see People v Stevens, 76 NY2d 833, 836 [1990]). In addition, "the photographswere admissible to elucidate and corroborate" the testimony of a medical expert insofaras that testimony concerned defendant's intent (Stevens, 76 NY2d at 836; see People v Camacho, 70AD3d 1393, 1394 [2010], lv denied 14 NY3d 886 [2010]; People v Jones, 43 AD3d1296, 1298 [2007], lv denied 9 NY3d 991 [2007], reconsiderationdenied 10 NY3d 812 [2008]). The court also properly exercised its discretion indenying defendant's midtrial motion to conduct DNA testing of a latex glove found neardefendant's property (seegenerally People v Ducret, 95 AD3d 636, 636 [2012], lv denied 19NY3d 996 [2012]). In any event, defendant may still seek relief on that point by makinga motion pursuant to CPL 440.30 (1-a).
Defendant contends that the court erred in refusing to charge criminally negligenthomicide as a lesser included offense of murder in the second degree inasmuch as therewas a reasonable view of the evidence to support a finding that defendant committed thelesser offense but not the greater, i.e., that defendant was merely negligent in failing toassist the victim as she was allegedly attacked in defendant's apartment by his cousin. Wereject that contention. Criminally negligent homicide is a lesser included offense ofmurder in the second degree (see People v Brooks, 163 AD2d 832, 832-833[1990], lv denied 76 NY2d 891 [1990]), but charging the lesser crime wouldrequire defendant to have a "familial relationship" with the child victim and, therefore, anaffirmative duty to assist her (People v Myers, 201 AD2d 855, 856 [1994]). Here,there is no such familial relationship and, therefore, no such affirmative duty. Thus, evenassuming, arguendo, that defendant's cousin attacked the victim, there is no reasonableview of the evidence that defendant committed the lesser offense of criminally negligenthomicide (see generally People v Glover, 57 NY2d 61, 63-64 [1982]).
Defendant further contends that he was deprived of a fair trial based on improperremarks from the prosecutor during the trial regarding his nickname and other remarksmade by the prosecutor on summation. Defendant failed to preserve his contention forour review with respect to the majority of instances of alleged misconduct (seeCPL 470.05 [2]), and we decline to exercise our power to address those instances as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Withrespect to those instances of alleged misconduct that defendant preserved for our review,we conclude that reversal is not required (see generally People v Mack, 128 AD3d 1456, 1457[2015], lv denied 26 NY3d 969 [2015]).
Contrary to defendant's contention, the court properly declined his request to redactcertain information from the presentence report inasmuch as the contested informationwas ruled on by the court after a Huntley hearing and was admitted in evidence attrial. Thus, the court did not sentence defendant based upon unreliable information (see People v Guevara, 68AD3d 1738, 1739 [2009]), and the sentence is not unduly harsh or severe.
Defendant's remaining contentions have not been preserved for our review, and wedecline to exercise our power to reach them as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Present—Whalen, P.J., Centra, Carni,DeJoseph and Troutman, JJ.