| People v Anaka |
| 2017 NY Slip Op 07268 [154 AD3d 870] |
| October 18, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eziafa Anaka, Appellant. |
Marianne Karas, Thornwood, NY, for appellant, and appellant pro se.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Jennifer Spencer and StevenA. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Cacace, J.), rendered September 1, 2015, convicting him of attempted murder in the seconddegree, assault in the first degree, assault in the second degree, criminal possession of a weaponin the second degree, endangering the welfare of a child, and tampering with a witness in thefourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his convictions were against the weight of the evidence. Infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 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 to the crimes ofwhich the defendant was convicted was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant failed to preserve for appellate review his contention that he was deprived ofhis right to due process and his right of confrontation by the Supreme Court's denial of hisapplication to subpoena the complainant's mental health records (see CPL 470.05 [2]). Inany event, the court providently exercised its discretion in denying the defendant's applicationbecause he made no showing that the complainant suffered from any condition relevant to herability to perceive and recall the crimes committed against her (see People v Plaza, 60 AD3d 1153[2009]; People v Brown, 24 AD3d884 [2005]).
The defendant's contention that he was deprived of his right to a fair trial because theSupreme Court permitted the prosecutor to elicit improper hearsay evidence is unpreserved forappellate review (see CPL 470.05 [2]). In any event, the testimony of a police officer thatthe complainant identified the defendant as a shooter was properly admitted because suchstatement constituted an excited utterance (see People v Edwards, 47 NY2d 493, 497[1979]). In addition, the complainant was properly permitted to testify as to what the defendanttold her in a telephone conversation because those statements constituted statements againstpenal interest (see People v [*2]Chico, 90 NY2d 585, 589[1997]; People v Moore, 118 AD3d916 [2014]; People v Case, 113AD3d 872 [2014]).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]), which permitted the People to elicit from thedefendant that he was convicted of a felony in 2008 and a misdemeanor in 2004, but precludedthe prosecutor from eliciting the underlying facts of convictions, avoided any undue prejudice tothe defendant (see People vWilliams, 12 NY3d 726 [2009]; People v Walker, 83 NY2d 455 [1994]; People v Brown, 101 AD3d 895[2012]; People v Thompson, 99AD3d 819 [2012]; People vVetrano, 88 AD3d 750 [2011]; People v McCoy, 45 AD3d 395 [2007]).
The defendant failed to preserve for appellate review his contention that the prosecutor, onsummation, denigrated the defense and shifted the burden of proof (see CPL 470.05 [2]).In any event, the prosecutor's comments on summation constituted fair comment on the evidenceand were a fair response to the arguments and theories presented by the defense's summation(see People v Halm, 81 NY2d 819 [1993]; People v Galloway, 54 NY2d 396[1981]; People v Ashwal, 39 NY2d 105 [1976]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining arguments, raised in his pro se supplemental brief, are withoutmerit. Dillon, J.P., Chambers, Cohen and Iannacci, JJ., concur.