| People v Young |
| 2019 NY Slip Op 00152 [168 AD3d 771] |
| January 9, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Young, Also Known as Shannon Thompson,Appellant. |
Paul Skip Laisure, New York, NY (Nao Terai 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 (WilliamGarnett, J.), rendered August 17, 2015, convicting him of murder in the second degree, upon ajury verdict, and imposing sentence upon his adjudication as a second violent felonyoffender.
Ordered that the judgment is modified, on the law, by vacating the defendant's adjudicationas a second violent felony offender; as so modified, the judgment is affirmed.
The defendant was convicted of murder in the second degree for strangling the victim in herresidence in Staten Island in 2005. Approximately 10 days after the victim's death, the policediscovered the victim's body in a barrel behind a building in Brooklyn. The defendant, who wason parole at the time of the offense, failed to appear for his appointment with his parole officer,and fled the country. He was arrested in 2014, after he returned to the United States.
Contrary to the defendant's contention, the People established by a preponderance of theevidence that venue was proper in Richmond County (see People v Greenberg, 89 NY2d553, 555-556 [1997]; People v Ribowsky, 77 NY2d 284, 291-292 [1991]; People v Auguste, 151 AD3d 734,734 [2017]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), there was legally sufficient evidence to establish thedefendant's identity as the perpetrator beyond a reasonable doubt. That evidence consisted offorensic DNA evidence, coupled with the evidence of the defendant's flight shortly after thehomicide (see People v Drummond,143 AD3d 836, 837 [2016]; Peoplev Moss, 138 AD3d 761, 761 [2016]; People v Dolan, 2 AD3d 745, 746 [2003]). Moreover, in fulfillingour responsibility to conduct an independent review of the weight of the evidence (seeCPL 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 was not against theweight of evidence (see People vRomero, 7 NY3d 633 [2006]).
The Supreme Court did not improvidently exercise its discretion in connection with itsMolineux ruling (see People v Molineux, 168 NY 264 [1901]), authorizing theadmission of evidence that the defendant, after regularly appearing for his parole appointments,absconded from parole and fled the country subsequent to the crime. That evidence, which wasadmitted with limiting instructions, demonstrated the defendant's consciousness of guilt (see People v Babb, 68 AD3d 887[2009]; People v Dugan, 238 AD2d 922 [1997]).
The defendant contends that the admission of certain testimony from a detective that thedefendant was identified as a suspect after the detective spoke with a member of the defendant'sfamily deprived the defendant of his constitutional right to confront the witnesses against him.The contention is unpreserved for appellate review (see CPL 470.05 [2]; People vFleming, 70 NY2d 947 [1988]; People v Perez, 9 AD3d 376, 377 [2004]). In any event, the jurywas instructed that this testimony was not admitted for its truth. Therefore, that testimony wasnot testimonial in nature (see Crawford v Washington, 541 US 36, 51 [2004]; People v Ryan, 17 AD3d 1, 3[2005]). Further, the testimony did not directly imply that the family member implicated thedefendant in the homicide (see People vRichberg, 123 AD3d 946 [2014]).
The Supreme Court improvidently exercised its discretion in admitting into evidence twophotographs of the victim taken prior to her death (see People v Joe, 146 AD3d 587, 590-591 [2017]; People v Wilson, 71 AD3d 799,800 [2010]; People v Donohue, 229 AD2d 396, 398 [1996]). However, the error washarmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error affected the verdict (see People v Crimmins, 36 NY2d 230,241-242 [1975]).
Some of the prosecutor's summation remarks were improper, including the remarks regardingthe purported testimony of a police detective as to his conversations with a nonwitness, whichwere not fair comment on the evidence and the inferences to be reasonably drawn therefrom(cf. People v Ashwal, 39 NY2d 105, 109-110 [1976]). However, the defendant did notobject to those remarks, and he therefore failed to preserve for appellate review his argument inthis regard (see CPL 470.05 [2]; People v Bethea, 159 AD3d 710, 712 [2018]; People v Bell, 136 AD3d 838, 839[2016]). In any event, the cumulative effect of the improper remarks was not so egregious,flagrant, or pervasive as to have deprived the defendant of a fair trial (see People v Romero, 7 NY3d911, 912 [2006]; People vTaylor, 120 AD3d 519, 521 [2014]; People v Persaud, 98 AD3d 527, 529 [2012]). The remainder of thesummation remarks challenged by the defendant constituted fair responses to the defensesummation, fair comment on the evidence and the reasonable inferences to be drawn therefrom,or permissible rhetorical comment (see People v Halm, 81 NY2d 819, 821 [1993];People v Galloway, 54 NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d at109-110; People v Gurdon, 153AD3d 1430 [2017]).
The question of whether the defendant was previously convicted of a violent felony is not inissue. However, as the People correctly acknowledge, the Supreme Court was not authorized toadjudicate the defendant a second violent felony offender since the instant conviction was for aclass A felony rather than a class B, C, D, or E felony (see Penal Law§§ 70.02 [1]; 70.04 [1] [a]). Therefore, we vacate the defendant's adjudicationas a second violent felony offender. However, since the statutory sentencing parameters for asecond violent felony offender do not include any specifications as to proper sentences for a classA felony because that crime is more serious than the crimes specified in those parameters, theerror could not have affected the sentence imposed to the defendant's detriment (seePenal Law § 70.04 [1] [a]; cf. People v Ballinger, 99 AD3d 931, 932 [2012]; People vTorres, 145 AD2d 665 [1988]). Therefore, the term of imprisonment imposed upon thedefendant's conviction of a class A felony should not be disturbed.
The record, viewed in totality, shows that the defendant was afforded meaningfulrepresentation by his trial counsel (seePeople v Caban, 5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708[1998]; People v Baldi, 54 NY2d 137 [1981]).
The defendant's remaining contentions are without merit. Rivera, J.P., Leventhal,Hinds-Radix and Brathwaite Nelson, JJ., concur.