| People v Atkinson |
| 2017 NY Slip Op 03764 [150 AD3d 870] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Atkinson, Appellant. |
Lynn W. L. Fahey, New York, NY (Benjamin S. Litman of counsel), for appellant, andappellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and JoyceAdolfsen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cyrulnik,J.), rendered October 30, 2013, convicting him of assault in the first degree, assault in the seconddegree, criminal possession of a weapon in the second degree, and endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
During the early morning hours of July 7, 2012, a shooting took place outside of anapartment building in the Brownsville section of Brooklyn. The defendant and two others werepresent at the time of the shooting, having visited a person who had accused them of stealing herengagement ring. At trial, that person's stepfather testified that during a heated dispute in front ofthe apartment building, the defendant shot him and another person whom he named. Thedefendant denied being the shooter. Of the known eyewitnesses to the incident, only thestepfather testified at trial regarding the incident.
The defendant's argument that the Supreme Court deprived him of due process by precludingcertain hearsay evidence is unpreserved for appellate review, because he did not raise it beforethe court (see CPL 470.05 [2]; People v Lane, 7 NY3d 888, 888 [2006]; People v Elliot, 127 AD3d 779,780 [2015]; People v Maynard, 108AD3d 781, 781 [2013]). In any event, despite the defendant's contentions to the contrary, thetwo hearsay statements he sought to introduce into evidence did not "possess sufficient indicia ofreliability" to warrant admission (People v Maynard, 108 AD3d at 781; see People v Burns, 6 NY3d 793,795 [2006]; People v Fields, 89AD3d 861, 862 [2011]; People v Esteves, 152 AD2d 406, 414 [1989]).
In his pro se supplemental brief, the defendant argues that the Supreme Court violated hisdue process rights when it denied his request for a missing witness charge with respect to theperson who had accused the defendant and his companions of stealing her engagement ring, andby failing to allow defense counsel to cross-examine her. He also argues that the court violatedhis right of confrontation by failing to conduct an in camera examination of that person. Theseconstitutional claims are unpreserved for appellate review, because the defendant did not raisethem before the court (see CPL 470.05 [2]; People v Lane, 7 NY3d at 888;People v Elliot, 127 AD3d at 780; People v Maynard, 108 AD3d at 781). In anyevent, they are without merit. The court properly denied the defendant's request for a missingwitness charge with respect to that person, because she would not [*2]have been expected to testify favorably to the People based uponher identification of a filler in a lineup, and based upon her adamant refusal to testify on thePeople's behalf after she was brought to court pursuant to a material witness order (see People v Greene, 87 AD3d551, 552 [2011]; People vMarino, 21 AD3d 430, 432-433 [2005]; People v Bryant, 11 AD3d 630, 631 [2004]). Further, the court didnot deprive the defendant of his right to cross-examine that person, as she did not testify for thePeople on direct examination. Moreover, there was no reason for the court to conduct an incamera examination of her to verify the prosecutor's representation that she refused to testify, orto try to ascertain why she would not cooperate with the People, especially since the court wasjustified in relying upon the prosecutor's representations in this regard (see Matter ofSachs, 169 App Div 622, 625 [1915]).
Finally, notwithstanding the defendant's contentions to the contrary, raised in his pro sesupplemental brief, he was not deprived of the effective assistance of counsel due to counsel'sfailure to move to dismiss the count of assault in the second degree with respect to thenontestifying victim, or for failing to object to the introduction into evidence of that victim'smedical records. The testimony of the stepfather, who was shot at the same time as the othervictim, combined with the other victim's medical records, was sufficient to support theconviction of assault in the second degree (see People v Callistro, 146 AD3d 795 [2017]; People v Smith, 138 AD3d 1038[2016]). Moreover, the medical records were properly admitted into evidence pursuant to thebusiness records exception to the hearsay rule (see CPLR 4518), because they wererelevant to the diagnosis and treatment of the victim's injuries, and likely were relied upon byhospital personnel in developing a discharge plan to ensure his safety (see People v Ortega, 15 NY3d610, 617 [2010]; People vBaught, 138 AD3d 1129, 1130 [2016]; People v Jaikaran, 95 AD3d 903, 904 [2012]).
The defendant's remaining contention, raised in his pro se supplemental brief, is withoutmerit. Dillon, J.P., Roman, Cohen and Miller, JJ., concur.