| People v Parsley |
| 2017 NY Slip Op 03778 [150 AD3d 894] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Charles Parsley, Appellant. |
Barry A. Weinstein, Bronx, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody, Laurie G.Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered June 26, 2012, convicting him of murder in the second degree (twocounts), attempted murder in the second degree, burglary in the first degree, and assault in firstdegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his conviction was not supported by legally sufficientevidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19[1995]). In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of theevidence pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court should have conducted in camerainquiries of four jurors who may have overheard a witness's outburst in the courtroom of "Whydid you do this?" to determine their ability to continue to serve impartially is unpreserved forappellate review (see CPL 470.05 [2]; People v Hicks, 6 NY3d 737 [2005]; People v Watson, 84 AD3d 1126[2011], affd 20 NY3d 1018 [2013]). After the outburst, the defendant never requestedthat such inquiries be made, and instead moved for a mistrial. In any event, there is no indicationin the record that the jurors who might have overheard the outburst were incapable of reaching animpartial verdict, and the prompt curative instruction given by the court was sufficient to cureany prejudicial effect that the outburst may have had on the jury (see People v Vann, 182AD2d 655, 657 [1992]).
The Supreme Court providently exercised its discretion in allowing the People to offer intoevidence testimony regarding the length of time it took a police officer to drive from the crimescene to the Robert F. Kennedy Bridge (formerly known as the Triborough Bridge).Demonstrations and tests, when relevant to a contested issue, can "play a positive and helpfulrole in the ascertainment of the truth" (People v Caballero, 34 AD3d 690, 691 [2006], quoting People vAcevedo, 40 NY2d 701, 704 [1976]). Here, whether the defendant's vehicle could havetraveled from the crime scene in time to be recorded by surveillance video at the Robert F.Kennedy Bridge approximately 15 minutes later was a contested issue that warranted theadmission of testimony from a police officer regarding his experience driving the most likelyroute taken by the defendant's [*2]vehicle from the crime scene tothe bridge. Any variation in the circumstances under which this demonstration was conductedaffected the weight of the evidence, but was not a basis for its exclusion (see People v Gorham, 72 AD3d1108, 1110 [2010]; People v Mariner, 147 AD2d 659 [1989]).
The defendant's contention that the Supreme Court erred in curtailing defense counsel'scross-examination of two prosecution witnesses is without merit. The nature and extent ofcross-examination is subject to the sound discretion of the trial court and, here, thecross-examination was not improvidently curtailed or restricted (see People v Stevens, 45 AD3d610, 611 [2007]). Further, the court providently exercised its discretion in admitting intoevidence the testimony of one of the codefendant's alibi witnesses, elicited duringcross-examination, as the testimony was probative of that witness's bias, and outweighed anypossible prejudice which may have arisen from its admission (see People v Carew, 2 AD3d 742 [2003]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).The defendant's contention that his sentence violated the Eighth Amendment prohibition againstcruel and unusual punishment is unpreserved for appellate review (see People v Tocci, 52 AD3d 541,542 [2008]; People v Reese, 31AD3d 582, 583 [2006]) and, in any event, is without merit, as there are no exceptionalcircumstances here warranting modification of the challenged sentence, which was within thepermissible statutory limit (see People vCruz, 54 AD3d 962, 963 [2008]; People v Brathwaite, 263 AD2d 89, 92[2000]).
The defendant's remaining contentions, including the contention raised in his pro sesupplemental brief, are without merit, or do not require reversal. Balkin, J.P., Austin, LaSalle andBrathwaite Nelson, JJ., concur.