| People v Cruz |
| 2017 NY Slip Op 06910 [154 AD3d 429] |
| October 3, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v James Cruz, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Noah J. Chamoy of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered September 11,2014, convicting defendant, after a jury trial, of murder in the second degree, and sentencing himto a term of 25 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility. Defendantwas identified by a neutral eyewitness who was familiar with defendant and had an ampleopportunity to observe him both during the murder and during the events leading up to it. Theevidence also supports an inference that, rather than acting recklessly, defendant fired shots withthe intent to kill one or more of his enemies, whom he mistakenly believed to be present, andinstead killed a bystander. Accordingly, defendant was properly convicted of intentional murderunder a theory of transferred intent (see Penal Law § 125.25 [1]). To theextent that, in addition to challenging the weight of the evidence, defendant is making a legalsufficiency claim, it is unpreserved and we decline to review it in the interest of justice. As analternative holding, we similarly reject it, and we likewise reject defendant's ineffectiveassistance of counsel claim relating to the lack of preservation.
The court providently exercised its discretion in admitting phone calls recorded duringdefendant's pretrial detention in which he recounted, to various acquaintances, his then-attorney'sdescription of surveillance videotapes that had been viewed by the lawyer, but not by defendant.On appeal, defendant claims that the admission at trial of evidence of what the former attorneytold defendant violated his rights to counsel and due process. However, defendant objected tothis evidence on entirely different grounds, and the court "did not expressly decide, in response toprotest, the issues now raised on appeal" (People v Miranda, 27 NY3d 931, 932 [2016]), notwithstanding its"mere reference" (id. at 933) to a matter related to the present issues. Accordingly,defendant's present claim is unpreserved and we decline to review it in the interest of justice. Asan alternative holding, we also reject it on the merits. The references to what the lawyer tolddefendant about the existence of surveillance videotapes of the homicide were necessary toprovide context for defendant's reaction to this news, as expressed to persons defendant chose tocall, and this reaction permitted the jury to draw a reasonable inference of consciousness of guilt.Defendant, who was on notice that the calls might be recorded, voluntarily disclosed what wouldhave been privileged communications and thereby waived any attorney-client privilege (seeUnited States v Mejia, 655 F3d 126, 133-135 [2d Cir 2011], cert denied 565 US 992[2011]). Furthermore, even if phone calls to friends and family could be excluded on the groundthat they "provided insight into possible defense strategies and preparation" (People v Johnson, 27 NY3d 199,205 n [2016]), the calls at issue made no such revelations.
Each of the other three evidentiary rulings challenged on appeal was a provident exercise[*2]of discretion that did not deprive defendant of a fair trial. Ineach instance, the evidence was relevant under the particular circumstances of the case, and wasnot unduly prejudicial. Concur—Friedman, J.P., Manzanet-Daniels, Kapnick, Kern andSingh, JJ.