| People v Curran |
| 2016 NY Slip Op 04071 [139 AD3d 1085] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Justin Curran, Appellant. |
Steven A. Feldman, Uniondale, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J., at trial; Berry, J., at sentence), rendered March 12, 2014, convicting him ofburglary in the second degree, upon his plea of guilty, and murder in the second degree(three counts), burglary in the first degree, robbery in the first degree, and grand larcenyin the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of murder in the second degree (three counts), burglary in the firstdegree, robbery in the first degree, and grand larceny in the fourth degree beyond areasonable doubt. Contrary to the defendant's contention, "[t]he standard of appellatereview in determining whether the evidence before the jury was legally sufficient tosupport a finding of guilt beyond a reasonable doubt is the same for circumstantial andnon-circumstantial cases" (People v Grassi, 92 NY2d 695, 697 [1999]). Here, thecircumstantial evidence adduced was sufficient to show, inter alia, that the defendantintended to kill the victim (seePeople v Guzman, 116 AD3d 790, 791 [2014]; People v Bergman, 70 AD3d1494, 1494-1495 [2010]; People v Gilmore, 199 AD2d 410, 411 [1993]).Furthermore, despite the defendant's contentions to the contrary, the circumstantialevidence sufficiently established that he used force to deprive the victim of her property,namely, an automobile. In addition, with respect to the burglary conviction, there wassufficient circumstantial evidence, inter alia, that the defendant entered the victim's homeunlawfully (see People v Barnes, 50 NY2d 375, 380 [1980]; People v Bergman, 70 AD3d1494 [2010]; People v Gilmore, 199 AD2d at 411; People v Lide,192 AD2d 557, 558 [1993]; People v Murray, 168 AD2d 573 [1990]; Peoplev Caraballo, 138 AD2d 725 [1988]), including DNA evidence linking the defendantto the crime (see People vJones, 105 AD3d 1059, 1060 [2013]; People v Dolan, 2 AD3d 745, 746 [2003]; People vRush, 242 AD2d 108 [1998]).
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and [*2]observe demeanor (see Peoplev Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt as tothose crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]). Specifically, contrary to the defendant's arguments, based on theweight of the circumstantial evidence, the jury was justified in inferring that thedefendant unlawfully entered the victim's home, stabbed her to death, and then stole hermotor vehicle, establishing the defendant's guilt beyond a reasonable doubt (cf. People v Wiley, 119 AD3d821, 822 [2014]).
The defendant's contention that the trial court improperly admitted evidence that hethrew a "dream light" at his former paramour, striking her in the eye, as part of thesequence of events that precipitated the murder of the victim, is unpreserved for appellatereview because he did not object to the court's curative instruction as given and did notrequest any additional curative instructions (see CPL 470.05 [2]; People v Singletary, 132 AD3d914, 914 [2015]; People vFlanagan, 132 AD3d 693, 694 [2015], lv granted 26 NY3d 1039[2015]). In any event, the determination of whether to admit such evidence lies withinthe sound discretion of the trial court (see People v Morris, 21 NY3d 588, 595 [2013]; People v Dorm, 12 NY3d16 [2009]; People vJames, 132 AD3d 905 [2015]). The trial court providently exercised itsdiscretion in admitting the evidence, since it was probative with respect to completing thenarrative of the events leading up to the murder of the victim and was not undulyprejudicial (see People v Tosca, 98 NY2d 660 [2002]; People v Johnson, 137 AD3d811 [2016]; People vHardy, 134 AD3d 955, 956 [2015]; People v Harris, 117 AD3d 847 [2014], affd 26NY3d 1 [2015]; People v Gordon, 308 AD2d 461 [2003]; People v Jones,221 AD2d 661 [1995]). Moreover, the court gave a sufficient limiting instructionregarding the use the jury could make of the evidence, which the jury is presumed tohave followed (see People vMaitland, 136 AD3d 1058, 1059 [2016]; People v Ross, 262 AD2d 429,430 [1999]).
Contrary to the defendant's contention, the trial court providently exercised itsdiscretion in admitting into evidence an autopsy photograph of the victim's left hand. Thephotograph was neither excessively gruesome nor introduced for the sole purpose ofarousing the jurors' passions and prejudicing the defendant (see People v Reed, 128 AD3d734, 735 [2015]; People vReynart, 71 AD3d 1057, 1058 [2010]; People v Prowse, 60 AD3d 703, 704 [2009]; People v Reyes, 49 AD3d565, 566-567 [2008]).
Lastly, the defendant contends that the court's consciousness of guilt charge lackedevidentiary support. However, the defendant failed to preserve this issue for appellatereview. In any event, notwithstanding the defendant's contrary assertions, flight need nottake place immediately following an act of misconduct in order to constitute evidence ofconsciousness of guilt (seePeople v Lendore, 36 AD3d 940 [2007]; People v Fama, 212 AD2d 542,543 [1995]; cf. People v Johnson, 287 AD2d 651 [2001]). Balkin, J.P.,Leventhal, Austin and Duffy, JJ., concur.