| People v Serrano |
| 2019 NY Slip Op 05026 [173 AD3d 1484] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Serrano, Also Known as Carlos Serrano Valentin,Appellant. |
Paul J. Connolly, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Schick, J.), rendered May 19,2017 in Sullivan County, upon a verdict convicting defendant of the crimes of murder in thesecond degree, criminal possession of a weapon in the second degree and reckless endangermentin the first degree.
The victim, who was the paramour of defendant's estranged wife, was fatally shot whilepresent, along with others, on the front porch of the multifamily residence where the wife lived.In relation to the shooting, defendant was convicted of murder in the second degree, criminalpossession of a weapon in the second degree and reckless endangerment in the first degree.Supreme Court sentenced him to the maximum permissible prison terms for all threecrimes—25 years to life for murder in the second degree, 15 years for criminal possessionof a weapon in the second degree, to be followed by five years of postrelease supervision, and2
The verdict is not against the weight of the evidence. "A weight of the evidence analysisrequires us to first determine, based on all of the credible evidence, whether a different resultwould have been unreasonable and, if not, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Guzy, 167AD3d 1230, 1232 [2018] [internal quotation marks, brackets and citations omitted], lvdenied 33 NY3d 948 [2019]). Defendant limits his challenge to the alleged lack of evidenceof his identity as the perpetrator and as to his mental state for reckless endangerment. Regardinghis identity, two eyewitnesses who knew defendant identified him in court as the shooter. Onewas his wife, who viewed the incident from a window facing the porch, and the other was aneighbor, who had lived in the same building with defendant for several months and was on theporch at the time of the shooting. Another witness, who was also on the porch at the time but didnot previously know defendant and could not identify him in court, described the shooter'sheight, build, ethnicity, clothing and neck tattoo, which were consistent with defendant'sappearance. All three of these eyewitnesses also testified that the shooter asked the victimwhether the shooter's wife and baby were inside; defendant was apparently the only person whohad a wife and baby inside the building. Although defendant attacks the credibility of thesewitnesses and their ability to accurately see the incident, we defer to the jury's credibilitydeterminations (see People v Stahli,159 AD3d 1055, 1057 [2018], lv denied 31 NY3d 1088 [2018]). In addition to otherevidence linking defendant to the shooting, the testimony of these three eyewitnesses establishedthat defendant was the perpetrator of the charged crimes.
As for defendant's other challenge to the weight of the evidence, "[a] person is guilty ofreckless endangerment in the first degree when, under circumstances evincing a depravedindifference to human life, he [or she] recklessly engages in conduct which creates a grave risk ofdeath to another person" (Penal Law § 120.25). Thus, to prove the requisite mensrea, the People must show both recklessness creating a grave risk of death and a depravedindifference to human life (see People vFeingold, 7 NY3d 288, 293-294 [2006]). "Depraved indifference is, simply put, 'an utterdisregard for the value of human life' " (People v Stahli, 159 AD3d at 1057,quoting People v Suarez, 6 NY3d202, 214 [2005]; see People vWarrington, 146 AD3d 1233, 1237 [2017], lv denied 29 NY3d 1038 [2017]),and a person is said to act recklessly "when he [or she] is aware of and consciously disregards asubstantial and unjustifiable risk that" a specified result will occur, where that risk is "of suchnature and degree that disregard thereof constitutes a gross deviation from the standard ofconduct that a reasonable person would observe in the situation" (Penal Law§ 15.05 [3]).
Although "the firing of a gun, without more, is insufficient to support a recklessendangerment conviction" (People vDurham, 146 AD3d 1070, 1073 [2017], lv denied 29 NY3d 997 [2017]),defendant shot at the victim while the victim was on an 8-foot by 10-foot porch with three otherpeople. Opening fire on the porch of a multifamily residence where multiple individuals,including a young child, were gathered, evinced an utter disregard for human life and recklesslycreated a grave risk of death to those individuals, which is particularly evident from testimonythat the victim, who was struck by three bullets, had to physically move the youngchild—who was behind him—out of the line of fire (see id. at 1073-1074;People v Payne, 71 AD3d 1289,1291-1292 [2010], lv denied 15 NY3d 777 [2010]; People v Wright, 22 AD3d 873, 875-876 [2005], lv denied6 NY3d 761 [2005]; compare People vStanley, 108 AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013]; People v Thompson, 75 AD3d760, 762 [2010], lv denied 15 NY3d 896 [2010]). Accordingly, the verdict is notagainst the weight of the evidence.
Supreme Court properly denied defendant's motion to preclude the neighbor's in-courtidentification of defendant. The People must initially establish that the police conduct wasreasonable and that the photo array lacks any undue suggestiveness, but "the defendant. . . bears the ultimate burden of proving that the pretrial identification procedurewas unduly suggestive" (People vQuintana, 159 AD3d 1122, 1126 [2018] [internal quotation marks and citation omitted],lv denied 31 NY3d 1086 [2018]; see People v Chipp, 75 NY2d 327, 335 [1990],cert denied 498 US 833 [1990]). "A photo array is unduly suggestive if some feature orcharacteristic of one of the depicted individuals or photographs is so unique or distinctive that itdraws the viewer's attention to that photograph, thereby indicating that the police have selectedthat particular individual" (People vMarryshow, 162 AD3d 1313, 1313 [2018] [citations omitted]; see People v Cole, 150 AD3d1476, 1477 [2017], lv denied 31 NY3d 1146 [2018]). "While the physicalcharacteristics of all the people included in an array must be similar, so that the viewer's attentionis not particularly drawn to the defendant, there is no requirement that the defendant besurrounded by people nearly identical in appearance" (People v Cole, 150 AD3d at1477-1478 [internal quotation marks, brackets and citations omitted]; see People vChipp, 75 NY2d at 336; People vLanier, 130 AD3d 1310, 1312 [2015], lv denied 26 NY3d 1009 [2015]).
Defendant does not challenge the double-blind procedure used to obtain the pretrialidentification. Rather, he argues that the photo array shown to the neighbor was undulysuggestive because in his photo he is wearing orange and he was the only individual that had atattoo with lettering on the front of the neck. The photo array depicts six males who all appear tobe of the same general age and have similar hair length and styles, eye color and shape, facialhair and facial expressions. The backgrounds are neutral and the individuals are all facingforward. Two men are wearing white tops, two are wearing black and two—includingdefendant—are wearing either orange or red. All six men have distinctive neck tattoos.Although defendant is the only individual with lettering or a word tattooed by itself on the frontof his neck, one man has lettering on the side of his neck and another has words within a drawingon the front of his neck. Under these circumstances, nothing about defendant's tattoo was likelyto unduly draw the viewer's attention to his photo or indicate that he was the perpetrator of thecharged crimes (see People v Flores,102 AD3d 707, 707 [2013], lv denied 21 NY3d 942 [2013]; see also People vQuintana, 159 AD3d at 1127). The shirt color would not link defendant to thecrimes—indeed, the witnesses testified that the shooter was wearing a blackshirt—and it is not discernable from the photos whether either of the men in orange or redis wearing a "jail jumpsuit," as defendant contends (see People v Thomas, 164 AD3d 619, 621 [2018], lv denied32 NY3d 1068 [2018]; People vPlumley, 111 AD3d 1418, 1420 [2013], lv denied 22 NY3d 1140 [2014]).Moreover, there is no indication in the record that the neighbor relied on the clothing of theperpetrator in making her identification, which she made quickly and without hesitation (see People v Smart, 142 AD3d513, 514 [2016], affd 29 NY3d 1098 [2017]; People v Lee, 30 AD3d 760, 762 [2006], lv denied 7 NY3d850 [2006]; People v Mattocks, 133 AD2d 89, 90 [1987], lv denied 70 NY2d 801[1987]). As nothing impermissibly draws attention to defendant's photo, we agree with SupremeCourt that defendant failed to meet his burden of demonstrating that the photo array was undulysuggestive.
Supreme Court did not err in determining that the People established a proper foundation forevidence of the wife's electronic communications with defendant. "A recordedconversation—such as a printed copy of the content of a set of cell phone instantmessages—may be authenticated through, among other methods, the testimony of aparticipant in the conversation that it is a complete and accurate reproduction of the conversationand has not been altered" (People vShortell, 155 AD3d 1442, 1444 [2017] [internal quotation marks and citations omitted],lv denied 31 NY3d 1087 [2018]; see People v Hughes, 114 AD3d 1021, 1023 [2014], lvdenied 23 NY3d 1038 [2014]). The wife's testimony established her phone number,defendant's phone number and defendant's Facebook account. Defendant's girlfriend also testifiedas to defendant's phone number. While he was in police custody, defendant asked for his cellphone and advised the police that it was in a certain vehicle, where a police officer located thephone at issue. Data recovered from that phone included a photo used as the profile picture fordefendant's Facebook account, as well as text messages and private Facebook messages betweendefendant and his wife. The wife testified regarding the accuracy of those messages (see People v Agudelo, 96 AD3d611, 611-612 [2012], lv denied 20 NY3d 1095 [2013]). The credibility of theauthenticating witness goes to the weight to be accorded the evidence, not to its admissibility(see id. at 611). Defendant's argument that someone else could have sent messages fromhis phone, which presented a factual issue for the jury to resolve (see People v Hughes,114 AD3d at 1023; People vClevenstine, 68 AD3d 1448, 1451 [2009], lv denied 14 NY3d 799 [2010]), wasbelied by testimony from a computer forensic technician explaining that it was extremelydifficult to obtain access to defendant's phone because it was locked with a pass code. Thus, thePeople laid an adequate foundation for admission of the subject electronic communications(see People v Shortell, 155 AD3d at 1444; People v Hughes, 114 AD3d at 1023;People v Clevenstine, 68 AD3d at 1450-1451).
Supreme Court did not abuse its discretion in admitting two photographs showing the bulletwounds in the victim's body. "The general rule with respect to photographs of a victim's deceasedbody is that they are admissible if they tend to prove or disprove a disputed or material issue, toillustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidenceoffered and should be excluded only if their sole purpose is to arouse the emotions of the jury andto prejudice the defendant" (People vPoulin, 159 AD3d 1049, 1051-1052 [2018] [internal quotations marks, ellipsis, bracketsand citations omitted], lv denied 32 NY3d 940 [2018]; see People v Molineaux, 156 AD3d1250, 1252 [2017], lv denied 31 NY3d 1085 [2018]). After Supreme Court foundthat a picture of the deceased victim on the ground with his eyes open and blood around his headwas "horrible" and "gory," the People agreed to crop the proffered exhibit to show only thevictim's torso, in a manner that is not gruesome. Two pictures were used because it wasimpossible to include all three bullet wounds in one photo, considering that one bullet entered thechest and the others entered the flank and buttocks. Although defendant did not contest the causeof death, the photos were relevant[FN1] to the material issue of intent to commitmurder, and the People could rely on them despite the existence of other evidence as to thatelement (see People v Alvarez, 38AD3d 930, 931-932 [2007], lv denied 8 NY3d 981 [2007]).[FN2] The court did not instruct the jury to avoidemotions when viewing the photos (compare People v Francis, 83 AD3d 1119, 1122 [2011], lvdenied 17 NY3d 806 [2011]; Peoplev Timmons, 78 AD3d 1241, 1244-1245 [2010], lv denied 16 NY3d 837 [2011]),but no limiting instructions were requested. As the sole purpose was not to arouse the jury'semotions or prejudice defendant, Supreme Court did not abuse its discretion in admitting thephotos (see People v Greenfield,167 AD3d 1060, 1063 [2018], lv denied 32 NY3d 1204 [2019]).
We have reviewed defendant's remaining arguments and find them unavailing.
Garry, P.J., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant did not dispute therelevancy of the photos but argued that their prejudicial nature outweighed their probative value.
Footnote 2:Although the People primarilyrelied on the intent element of the murder charge in their argument in Supreme Court to admitthe photos, they also mentioned that the photos corroborated eyewitness testimony that defendantwas initially shot from the front and was then shot in the back while moving the child out ofharm's way. Thus, the photos were also relevant to prove elements of reckless endangerment.