| People v Bermudez |
| 2019 NY Slip Op 00177 [168 AD3d 446] |
| January 10, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Bayron Bermudez, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), andPatterson Belknap Webb & Tyler LLP, New York (Daniel Friedman of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered November 1,2016, convicting defendant, after a jury trial, of attempted murder in the second degree, assault inthe first and second degrees, attempted assault in the first degree and two counts of criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of 20years, unanimously affirmed.
The court providently exercised its discretion in permitting the girlfriend of the attemptedmurder victim (the other victim being a bystander) to testify that her boyfriend had identifieddefendant as the person who shot him. This testimony qualified as an excited utterance becausewhen this victim made the statement, he had just been shot in the leg, and surroundingcircumstances show that he was "under the stress of excitement caused by an external eventsufficient to still his reflective faculties" (People v Edwards, 47 NY2d 493, 497 [1979]).Although defendant and the victim were enemies, the victim was in an agitated condition thatrendered it unlikely that he was scheming to falsely accuse defendant of shooting him (see People v Gantt, 48 AD3d 59,63-65 [1st Dept 2007], lv denied 10 NY3d 765 [2008]).
The court also properly received a detective's rebuttal testimony that the girlfriend had toldthe detective that the victim had identified defendant to her as his assailant. The People properlyintroduced that testimony to rebut the inferences raised by defense counsel, duringcross-examination of the girlfriend and direct examination of a defense witness, that thegirlfriend's testimony was a recent fabrication invented to obtain a benefit from the People in apending case against her. The prior consistent statement made to the detective predated thealleged motive to falsify (see People v McClean, 69 NY2d 426, 428-430 [1987];People v Baker, 23 NY2d 307, 322-323 [1968]).
Defendant was not deprived of a fair trial by the People's unsuccessful attempts to get theattempted murder victim to testify about the crime, or by related events at trial. By the time oftrial, this victim was awaiting sentence in an unrelated case and had entered into a cooperationagreement. The victim took the stand and testified about the agreement, but refused to give anytestimony about the incident. The victim, who did not cite the Fifth Amendment or assert anyother privilege, persisted in his refusal despite the threat of contempt. We conclude that there wasnothing in the victim's refusal to testify, the cooperation agreement, or the People's relatedcomments in voir dire and opening and closing statements, that would lead the jury to drawinculpatory inferences against defendant that would add any weight to the People's case (seePeople v Vargas, 86 NY2d 215, 222 [1995]; People v Berg, 59 NY2d 294, 298[1983]). The various comments made by the prosecutor were neutral, and neither the victim'slimited testimony before the jury nor the fact of his cooperation agreement were likely to lead thejury to infer defendant's guilt. In any event, to the extent the jury could have inferred that thevictim had inculpatory evidence that he was refusing to reveal, the court's instructions that thejury was not to speculate as to why the victim refused to testify was sufficient to avoid thatinference (see Berg, 59 NY2d at 300), and the jury is presumed to have followed theinstruction.
The court providently exercised its discretion in precluding defendant from introducing anentire recorded phone conversation between defendant and his cousin. There was no showingthat the excluded portion was exculpatory, or explanatory of the portion that had been placed inevidence by the People (see People v Dlugash, 41 NY2d 725, 736 [1977]; People v Carver, 147 AD3d 415,416 [1st Dept 2017], lv denied 29 NY3d 1030 [2017]). Concur—Acosta, P.J.,Renwick, Manzanet-Daniels, Webber, Kahn, JJ.