| People v Alexander |
| 2019 NY Slip Op 01341 [169 AD3d 571] |
| February 26, 2019 |
| Appellate Division, First Department |
[*1](February 26, 2019)
| The People of the State of New York,Respondent, v Raymond Alexander, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered January 4, 2017,convicting defendant, after a jury trial, of assault in the second degree, criminal possession of a weaponin the second degree (two counts) and attempted assault in the first degree, and sentencing him, as asecond felony offender, to an aggregate term of 15 years, unanimously affirmed.
The court providently exercised its discretion in admitting in evidence a photograph, taken less thantwo months before the shooting, showing a person, sufficiently established to be defendant, holding arevolver of the type used in the crime. This evidence was relevant to show that defendant had access tosuch a weapon, thus tending to establish his identity as the perpetrator, and there was no requirement ofproof that the revolver in the photograph was the actual weapon used in the crime (see e.g.People v Del Vermo, 192 NY 470, 478-482 [1908]; People v Bailey, 14 AD3d 362, 363 [1st Dept 2005], lv denied4 NY3d 851 [2005]; People v Marte, 7AD3d 405, 407 [1st Dept 2004], lv denied 3 NY3d 677 [2004]).
Defendant has not established that he was prejudiced by the timing of, and alleged change in, thecourt's ruling regarding the photograph. The court expressly stated that it would reserve decision onadmissibility until it determined whether the People could lay a foundation establishing that defendantwas the person depicted. Then, after defendant's testimony, elicited through permissiblecross-examination, established such a foundation, the court appropriately received the photograph inevidence. The evidence was not received as rebuttal evidence or on a door-opening theory, butbecause of the particular circumstance that defendant's testimony supplied the necessaryfoundation.
The court also properly admitted a series of text messages sent and received about a day beforethe shooting, discussing the operability of a "22." Even though the weapon used in the shooting was nota .22 caliber, the text messages, viewed in context, tended to show that defendant was planning theshooting.
The record refutes defendant's claim that he was denied his right to be present at proceedingsrelating to the admissibility of uncharged crimes evidence.
The court properly instructed the jury on accessorial liability, notwithstanding that no such languageappeared in the indictment and the People's main theory was that defendant personally shot the victim.There was no improper amendment of the indictment, because an indictment charging a defendant as aprincipal is "not unlawfully amended by the admission of proof and instruction to the jury that adefendant is additionally charged with acting-in-concert to commit the same crime, nor does itimpermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability asa principal or criminal culpability as an accomplice" (People v Rivera, 84 NY2d 766, 769[1995]). A theory that defendant intentionally aided a particular other person, who did the actualshooting, was supported by defendant's own testimony. Although defendant claimed he had not sharedthe gunman's intent, such intent could be inferred from the totality of the evidence. We rejectdefendant's claim of unfair surprise, particularly because the theory of accessorial liability arose fromdefendant's own testimony (see People v Spann, 56 NY2d 469 [1982]; People vAlford, 246 AD2d 337 [1st Dept 1998]).
During defendant's testimony, the court providently exercised its discretion when it precluded, ashearsay, the contents of a statement allegedly made to defendant by the actual perpetrator. Defendant'soffer of proof was insufficient to demonstrate that the content of the statement was admissible for alegitimate purpose other than its truth.
The court also providently exercised its discretion in denying defendant's mistrial motion made onthe basis of a police officer's isolated reference to inadmissible evidence. The court's curativeinstruction, which the jury is presumed to have followed, was sufficient to prevent any prejudice (seePeople v Santiago, 52 NY2d 865 [1981]; People v Young, 48 NY2d 995 [1980]).
To the extent that defendant is raising constitutional claims relating to the above-discussed issues,those claims are unpreserved and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
We perceive no basis for reducing the sentence. Concur—Renwick, J.P.,Manzanet-Daniels, Tom, Mazzarelli, Webber, JJ.