| People v Smith |
| 2018 NY Slip Op 05498 [163 AD3d 1005] |
| July 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyrell Smith, Appellant. |
Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (RobertJ. Collini, J.), rendered April 25, 2014, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him,as a persistent violent felony offender, to consecutive indeterminate terms of imprisonment of 25years to life on each conviction.
Ordered that the judgment is modified, on the law, by providing that the sentences imposedshall run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, trial counsel was not ineffective because he failed tocontrovert a warrant to search the defendant's cell phone. Taking into consideration the totality ofthe evidence, the law, and the circumstances of the case, it is evident that trial counsel providedmeaningful representation (see People v Benevento, 91 NY2d 708, 714 [1998];People v Toellner, 299 AD2d 567, 567-568 [2002]). Counsel's failure to the challenge thesearch warrant can be explained as a legitimate trial strategy because the application for thewarrant was supported by probable cause, and the warrant was not unconstitutionally overbroad,despite a technical defect on the face of the warrant (see Groh v Ramirez, 540 US 551,558 [2004]).
The defendant's contention that he was deprived of a fair trial when the Supreme Courtadmitted into evidence allegedly prejudicial photographs is unpreserved for appellate review(see CPL 470.05 [2]). In any event, the defendant's contention is without merit."Photographic evidence should be excluded only if its sole purpose is to arouse the emotions ofthe jury and to prejudice the defendant" (People v Mairs, 157 AD3d 818, 819 [2018] [internal quotationmarks omitted]; see People v Pobliner, 32 NY2d 356 [1973]; People v Hunter,131 AD2d 877, 878 [1987]). Such evidence is properly admissible "if [it] tend[s] to prove ordisprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or tocorroborate or disprove some other evidence offered or to be offered" (People v Pobliner,32 NY2d at 369; see People v Sims, 110 AD2d 214, 222 [1985]). "When inflammatoryphotographs are relevant to a material issue at trial, the court has broad discretion to determinewhether the probative value of the photographs outweighs any prejudice to the defendant" (People v Thompson, 108 AD3d732, 733 [2013]; see People v Stevens, 76 NY2d 833, 835 [1990]; People vMairs, 157 AD3d at 819). Here, the photographs at issue were relevant to material issues inthe case, and [*2]the court did not improvidently exercise itsdiscretion in admitting them into evidence, as they were not so inflammatory as to deprive thedefendant of a fair trial.
However, the sentence imposed on the defendant's conviction of criminal possession of aweapon in the second degree under Penal Law § 265.03 (1) (b), for possessing aloaded firearm with intent to use it unlawfully against another, must run concurrently with thesentence imposed on his conviction of murder in the second degree. The People did not provethat the defendant had any unlawful intent that was separate from his intent to shoot the victim(see People v Wright, 19 NY3d359 [2012]). Accordingly, the Supreme Court should not have imposed consecutivesentences.
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]).Dillon, J.P., Sgroi, Miller and Brathwaite Nelson, JJ., concur.