| People v Rodriguez |
| 2018 NY Slip Op 07824 [166 AD3d 459] |
| November 15, 2018 |
| Appellate Division, First Department |
[*1](November 15, 2018)
| The People of the State of New York,Respondent, v Jose Rodriguez, Appellant. |
Christina A. Swarns, Office of the Appellate Defender, New York (Caitlin Glass ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J. at hearing;Lester Adler, J. at jury trial and sentencing), rendered March 1, 2016, convictingdefendant of assault in the second degree and criminal possession of a weapon in thefourth degree, and sentencing him, as a second violent felony offender, to an aggregateterm of six years, unanimously affirmed.
The court providently exercised its discretion in precluding defense counsel fromasking certain questions of prospective jurors, such as questions concerning the panelists'feelings rather than their ability to reach a fair and impartial verdict (see People vPepper, 59 NY2d 353, 358 [1983]; People v Boulware, 29 NY2d 135, 141[1971], cert denied 405 US 995 [1972]). Moreover, the court permitted inquiryinto the substance of all relevant subjects, and its limitations on voir dire essentially wentto the phrasing of some questions. The record fails to support defendant's claim ofdisparate treatment by the court of the prosecution and defense.
The court properly denied defendant's request to submit third-degree assault as alesser included offense, because there was no reasonable view of the evidence, viewedmost favorably to defendant, that he assaulted his girlfriend negligently or recklesslyrather than intentionally (seegenerally People v James, 11 NY3d 886, 888 [2008]). The victim's account ofbeing repeatedly stabbed by defendant with a long knife was abundantly corroborated bybystanders, and there is nothing to support a theory of unintentional conduct. Defendant'scontention that such a lesser included offense charge was warranted by his statementafter the incident that he was "drunk" is unpreserved, because defense counsel did notraise this argument or request an intoxication charge, and we decline to review it in theinterest of justice (see e.g.People v Doyle, 3 AD3d 126, 130 [1st Dept 2004], lv denied 2 NY3d739 [2004]). As an alternative holding, we reject it on the merits.
The court providently exercised its discretion in denying defense counsel's requestfor a missing witness charge as to a man who allegedly intervened during the incident,and later met with the prosecutor but refused to testify. This witness was not under thePeople's control for purposes of a missing witness charge, because there was no evidencehe had any relationship with the victim or anyone else relevant to this case (see e.g. People v Rawls, 65AD3d 978 [1st Dept 2009], lv denied 14 NY3d 773 [2010]).
There is no merit to any of defendant's challenges to audio recordings of five 911calls. The People sufficiently authenticated the recordings through testimony from atechnician establishing that the recordings were what they purported to be based on thestandard procedures employed by the Police Department (see e.g. DeLeon v PortAuth. of N.Y. & N.J., 306 AD2d 146 [1st Dept 2003]; see also People vEly, 68 NY2d 520, 527 [1986]), as well as by way of the Department's certificationof authenticity (see CPLR 4518 [c]). The court providently admitted the 911 callsunder the present sense impression and excited utterance exceptions to the hearsay rule,because the callers described their substantially contemporaneous observations of theincident, and the circumstances and contents of the calls generally showed that the callersmade [*2]their statements under the stress of nervousexcitement (see generallyPeople v Johnson, 1 NY3d 302, 306 [2003]; People v Vasquez, 88NY2d 561, 575 [1996]). Defendant's Confrontation Clause argument is unavailingbecause the nontestifying declarants' statements were not testimonial, in that they weremade for the purpose of responding to an "ongoing emergency" (Davis vWashington, 547 US 813, 822 [2006]; see e.g. People v Villalona, 145 AD3d 625, 626 [1st Dept2016], lv denied 29 NY3d 953 [2017]).
The hearing court correctly declined to preclude or suppress defendant's statement toa caseworker employed by the New York City Administration for Children's Services.The statement was made during the pendency of the instant assault case, in which thevictim was defendant's adult girlfriend. The notice requirement of CPL 710.30 (1) (a) didnot apply because the caseworker was merely conducting a child protective investigationand was not acting in cooperation with law enforcement (see People v Batista,277 AD2d 141 [1st Dept 2000], lv denied 96 NY2d 825 [2001]). Since there wasno law enforcement involvement, there was also no violation of defendant's right tocounsel.
The court providently exercised its discretion in denying defendant's mistrial motion,made after the court struck testimony by the victim that allegedly suggested thatdefendant had committed uncharged crimes. The jury is presumed to have followed thecourt's instructions to disregard that testimony (see People v Davis, 58 NY2d1102 [1983]). In any event, defendant failed to establish that this testimony actuallyconcerned prior uncharged crimes or bad acts.
Defendant's general objections and belated mistrial motion failed to preserve hischallenges to the People's summation (see People v Romero, 7 NY3d 911, 912 [2006]), and wedecline to review them in the interest of justice. As an alternative holding, we find nobasis for reversal, because any improprieties in the summation were not so pervasive oregregious as to deprive defendant of a fair trial (see People v D'Alessandro, 184AD2d 114, 118-119 [1992], lv denied 81 NY2d 884 [1993]).
To the extent harmless error analysis applies to the issues raised by defendant onappeal, we find that any errors were harmless in light of the overwhelming evidence ofguilt (see People v Crimmins, 36 NY2d 230 [1975]).
We perceive no basis for reducing the sentence. Concur—Acosta, P.J.,Friedman, Manzanet-Daniels, Webber, Singh, JJ.