| People v Santiago |
| 2017 NY Slip Op 08978 [156 AD3d 1386] |
| December 22, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Joseph J.Santiago, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, New York State Defenders Association,Albany (Alfred O'Connor of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered September 24, 2013. The judgment convicted defendant, upon a jury verdict, of murderin the second degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), and two counts of criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]; [3]), arising fromallegations that he shot a man on a street in Rochester. Defendant contends that Supreme Courterred in permitting a witness to describe the perpetrator at trial, because that witness hadpreviously viewed a photo array and identified defendant as the perpetrator to the police, and thePeople failed to provide a CPL 710.30 notice of the procedure.
We agree with defendant that, under the circumstances presented, the court erred inpermitting the witness to describe the perpetrator and state that he resembled a particular popularmusician, thereby implicitly identifying defendant as the perpetrator. The People admittedly didnot provide the notice required by CPL 710.30 former (1) (b), and they failed to establish that thewitness provided a description of the perpetrator before the identification procedure wasconducted (cf. People v Myrick, 66 NY2d 903, 904 [1985]; People v Sanders, 66NY2d 906, 908 [1985]; People v Jones, 163 AD2d 911, 912 [4th Dept 1990], lvdenied 76 NY2d 941 [1990]). Furthermore, although it appears that the witness had somefamiliarity with defendant, the court failed to hold a hearing at which the People could establishthat "the witness is so familiar with the defendant that there is 'little or no risk' that policesuggestion could lead to a misidentification" (People v Rodriguez, 79 NY2d 445, 450[1992]).
Nevertheless, we conclude that, because "the proof of defendant's guilt is overwhelming, andthere is no significant probability that the error might have contributed to defendant'sconviction[,] . . . the error is harmless beyond a reasonable doubt" (People vPeterkin, 245 AD2d 1050, 1051 [4th Dept 1997], lv denied 91 NY2d 1011 [1998];see People v Thomas, 58 AD3d645, 645 [2d Dept 2009], lv denied 12 NY3d 921 [2009]; People v Murphy, 28 AD3d 1096,1096 [4th Dept 2006], lv denied 7 NY3d 760 [2006]; see generally People vJohnson, 57 NY2d 969, 970 [1982]). Several other witnesses provided nearly identicaldescriptions of the perpetrator and his clothing, and defendant was apprehended a short distanceaway, very close to the murder weapon, and inside a locked yard into which the witnesses saidthe perpetrator had fled. Furthermore, he was wearing pants that matched the description that thewitnesses gave of the perpetrator's pants, and he was holding a hat and had a T-shirt at his feet,both of which matched the witnesses' description of those parts of the perpetrator's clothing.Finally, immediately after being shot, the victim told a friend that defendant had shot him. Thus,"[e]ven in the absence of[*2][the witness's implicit] identificationtestimony, the evidence at trial overwhelmingly established that defendant was the [perpetrator]"(People v Pacquette, 25 NY3d575, 580 [2015]).
We reject defendant's further contention that the People committed a Brady violationby refusing to disclose the name of a confidential informant. It is well settled that a confidentialinformant's identity must be disclosed where his or her role in the matter was significant, such aswhere he or she was an eyewitness or participant in the crime, or was " 'an activeparticipant in setting the stage' " (People v Goggins, 34 NY2d 163, 170 [1974])."When however [the informant] has played a marginal part by, for instance, merely furnishing atip or some information to the police, the privilege should prevail absent an extremely strongshowing of relevance" (id.; seePeople v Wade, 38 AD3d 1315, 1315 [4th Dept 2007], lv denied 8 NY3d 992[2007]).
Defendant failed to make such a showing here, and we therefore reject his contention thatreversal is required because of the court's refusal to require the People to disclose the informant'sidentity. The record establishes that the People provided the defense with a police reportindicating that the informant, who was not present at the crime scene, had heard from anunknown source that a woman had removed something from the scene prior to the arrival ofpolice officers. The report also indicated that the informant had heard that the victim had aweapon and fired back at defendant after defendant shot the victim. Thus, inasmuch as theconfidential informant's hearsay information "made it appear as if the victim acted in self-defenseand not the other way around" (People vFisher, 28 NY3d 717, 722 [2017]), "there is [no] reasonable probability that[,] had itbeen disclosed to the defense, the result would have been different—i.e., a probabilitysufficient to undermine [this Court's] confidence in the outcome of the trial" (People vBryce, 88 NY2d 124, 128 [1996]; see People v Hunter, 11 NY3d 1, 5 [2008]).
Contrary to defendant's further contention, the court did not abuse its discretion in admitting,as an excited utterance, a statement made by the victim to a friend in the immediate aftermath ofthe shooting. The victim told a friend, before police officers and emergency medical personnelarrived, that defendant shot him. It is well settled that, "under certain circumstances of physicalshock, a stress of nervous excitement may be produced which stills the reflective faculties andremoves their control . . . [An excited] utterance is made under the immediate anduncontrolled domination of the senses, and during the brief period when considerations ofself-interest could not have been brought fully to bear by reasoned reflection" (People v Johnson, 1 NY3d 302,306 [2003] [internal quotation marks omitted]). In determining whether a statement is an excitedutterance, "the decisive factor is whether the surrounding circumstances reasonably justify theconclusion that the remarks were not made under the impetus of studied reflection" (People vEdwards, 47 NY2d 493, 497 [1979]). Furthermore, that determination is "entrusted in thefirst instance to the trial court" (id.), and it is well settled that "[t]rial courts are accordedwide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulingsshould not be disturbed on appeal" (People v Carroll, 95 NY2d 375, 385 [2000]). Here,we find no abuse of discretion in the court's determination that the victim's statement was anexcited utterance (see People v Brown, 70 NY2d 513, 520 [1987]; People v Medina, 53 AD3d 1046,1047 [4th Dept 2008], lv denied 11 NY3d 856 [2008]).
Finally, the court properly redacted from the victim's medical records his statement that hedid not know who shot him. Defendant contended that the statement was admissible under thebusiness records exception to the hearsay rule (see CPLR 4518 [a]). "In order for astatement contained in a hospital record to be admissible under [that] exception, it must begermane to the medical diagnosis or treatment of the patient" (People v Bailey, 252AD2d 815, 815-816 [3d Dept 1998], lv denied 92 NY2d 922 [1998]; see People v Emanuel, 89 AD3d1481, 1482 [4th Dept 2011], lv denied 18 NY3d 882 [2012]), and defendant failed toestablish that the statement in question had any relevance to the victim's diagnosis or treatment.Present—Whalen, P.J., Smith, Lindley, NeMoyer and Curran, JJ.