| People v Daniels |
| 2016 NY Slip Op 04956 [140 AD3d 1083] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Akeem Daniels, Appellant. |
Seymour W. James, Jr., New York, NY (Anita Aboagye-Agyeman of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, MorganJ. Dennehy, and Terrence F. Heller of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered January 14, 2013, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of criminal possession of a weapon in the seconddegree arising out of an incident that took place on May 12, 2011, when gunshots werefired in front of 605 Sutter Avenue in Brooklyn. At trial, the People introduced intoevidence a surveillance video and still photographs made from the video, which allegedlydepicted the defendant during the incident. The People also introduced excerpts from arecorded telephone call that the defendant made during his detention at Rikers IslandCorrectional Facility, in which he admitted having fired several shots. This call was madeavailable to the People by the New York City Department of Correction (hereinafter theDepartment), in accordance with the Department's policy and practice of monitoringinmate's telephone calls, and releasing recordings, upon request, to the City's DistrictAttorneys' Offices.
The defendant contends that the Supreme Court improperly admitted into evidencethe recording of the telephone call that he made when he was detained because he wasnever informed that recordings of the telephone calls that he made while detained may bereleased to the prosecutor. This contention is unpreserved for appellate review(see CPL 470.05 [2];People v Johnson, 27 NY3d 199 [2016]; People v Jackson, 125 AD3d 1002, 1003 [2015]), and wedecline to review it in the exercise of our interest of justice jurisdiction. To the extent thedefendant contends that the admission into evidence of the subject recorded telephonecall deprived him of his constitutional right to counsel, he may raise this claim for thefirst time on appeal (see People v Kinchen, 60 NY2d 772, 773 [1983]; People v Owens, 129 AD3d995 [2015]). However, the defendant's contention in this regard is without merit(see People v Johnson, 27 NY3d at 205-206).
Contrary to the People's contention, the defendant preserved for appellate review hiscontention that it was error to allow a police detective to testify that, in his opinion, thedefendant [*2]was the individual depicted in thesurveillance video (see CPL 470.05 [2]). However, the Supreme Courtprovidently exercised its discretion in permitting this testimony, as there was some basisfor concluding that the police detective, who knew the defendant from his patrols of thedefendant's neighborhood, was more likely than the jury to correctly determine whetherthe defendant was depicted in the video (see People v Russell, 79 NY2d 1024,1025 [1992]; People vThomas, 139 AD3d 764 [2016]; People v Watson, 121 AD3d 921, 922 [2014]). Althoughthe court failed to instruct the jurors that the opinion was merely to aid their decisionbased upon all the facts and circumstances of the case and that they were entitled toaccept or reject it (see People vSanchez, 21 NY3d 216, 225 [2013]; People v Russell, 165 AD2d 327,336 [1991], affd 79 NY2d 1024 [1992]), any error in that regard was harmless, asthe evidence of the defendant's guilt was overwhelming, and there was no significantprobability that the error contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Alleyne, 114 AD3d 804, 805 [2014]).
The Supreme Court did not err in denying the defendant's request for a missingwitness charge as to an individual who sustained a gunshot wound to his leg during theincident. The defendant met his initial burden of showing that the uncalled witness couldbe expected to have knowledge regarding a material issue in the case and to providetestimony favorable to the People (see People v Macana, 84 NY2d 173, 177[1994]; People v Kitching, 78 NY2d 532, 536-537 [1991]). However, inopposition to this showing, the People demonstrated that the uncalled witness, who hadbeen subpoenaed to appear before the grand jury but failed to cooperate, was not undertheir control (see People v Macana, 84 NY2d at 177; People v Greene, 87 AD3d551, 552 [2011]; People vSmith, 71 AD3d 1174, 1175-1176 [2010]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Dickerson, Austin and Roman, JJ., concur.