| People v Anglin |
| 2019 NY Slip Op 08855 [178 AD3d 839] |
| December 11, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Yohannes Anglin, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant, and appellantpro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, andJordan Cerruti of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John G.Ingram, J.), rendered June 9, 2015, convicting him of kidnapping in the first degree (two counts),reckless endangerment in the first degree (two counts), and assault in the second degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppress physicalevidence and his statements to law enforcement officials and the denial of the defendant's motionto controvert a search warrant and to suppress physical evidence seized in the executionthereof.
Ordered that the judgment is affirmed.
We agree with the Supreme Court's determination, after a hearing, denying that branch of thedefendant's omnibus motion which was to suppress physical evidence and his statements to lawenforcement officials, and denying the defendant's motion to controvert a search warrant and tosuppress physical evidence seized in the execution thereof. Evidence at the hearing established,inter alia, that police officers were responding to a report of an assault in progress; the personwho called the 911 emergency number, who was present at the location, stated that he heard awoman being beaten inside the apartment, heard her scream, and heard a male saying, "shut up";and no one responded to the officers' repeated knocks on the apartment door. Contrary to thedefendant's contention, the record supports the court's determination that the police werepresented with an emergency situation that justified a warrantless entry into the defendant'sapartment (see People v Dallas, 8NY3d 890, 891 [2007]; People v Mitchell, 39 NY2d 173, 177-178 [1976]; People v Sandford, 173 AD3d 777,777 [2019]; People v Maragh, 159AD3d 722, 723 [2018]; People vTimmons, 54 AD3d 883, 884 [2008]; People v Manning, 301 AD2d 661, 663[2003]) and the court's determination that the subsequently obtained search warrant was notobtained as the result of an illegal entry into the defendant's apartment.
Expert testimony " 'may be admitted to explain behavior of a victim that mightappear unusual or that jurors may not be expected to understand' " (People v Williams, 20 NY3d 579,584 [2013], quoting People v Carroll, 95 NY2d 375, 387 [2000]; see People v Carter, 151 AD3d877, 877 [2017]). Here, the Supreme Court providently exercised its discretion in permittinga witness, who was deemed an expert in the area of forensic psychology with a specialization ininterpersonal violence and traumatic stress, to testify on the subject of domestic violencegenerally, as her testimony was relevant to explain the behavior patterns of victims of domesticviolence that might appear unusual or that jurors might not be expected to understand, and thewitness did not testify as to the particular facts of the case or offer an opinion as to whether theconduct at issue constituted domestic violence (see People v Whitson, 166 AD3d 663, 664 [2018]; People v Walters, 127 AD3d 889,889 [2015]; People v Thompson,119 AD3d 966, 966-967 [2014]).
The Supreme Court providently exercised its discretion in admitting a nude photograph ofthe child complainant into evidence, as the photograph was neither excessively gruesome norintroduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant(see People v Wood, 79 NY2d 958, 960 [1992]; People v Pobliner, 32 NY2d 356,369-370 [1973]; People v Barnett,163 AD3d 700, 702 [2018]). Rather, the photograph was relevant to help illustrate the child'sphysical condition and to elucidate the testimony of the People's witnesses (see People vBarnett, 163 AD3d at 702; People vJones, 142 AD3d 678, 678-679 [2016]; People v Fernandez, 115 AD3d 977, 978 [2014]).
Although some of the prosecutor's remarks in the opening statement and in summation wereimproper, contrary to the defendant's contention, raised in his pro se supplemental brief, anyinstances of prosecutorial misconduct during opening and summation were cured by the SupremeCourt's prompt curative instructions (see People v Galloway, 54 NY2d 396, 398 [1981])or were not, either individually or collectively, so egregious so as to deprive the defendant of afair trial (see People v Lopez, 150AD3d 1266, 1267 [2017]; People vAlphonso, 144 AD3d 1168, 1168-1169 [2016]).
The prosecutor's use of a chart in summation, depicting, inter alia, a partial compilation ofcertain phone records in evidence did not deprive the defendant of a fair trial (see People v Williams, 29 NY3d84, 89-90 [2017]; People vAnderson, 29 NY3d 69, 72-73 [2017]). The prosecutor's comments with regard to thephone records and the information contained in the chart, with limited exception, were faircomment on the evidence. Moreover, although the Supreme Court informed the jury that theprosecutor had made a representation that the chart was a compilation of exhibits in evidence, itmade clear that the chart was a demonstrative aid and was not in evidence. Further, minordiscrepancies between the chart and the exhibits did not deprive the defendant of a fair trial(see People v Anderson, 29 NY3d at 74; People v Johnson, 159 AD3d 833, 835 [2018]; People v Choi, 137 AD3d 808,810 [2016]; People v Haigler, 44AD3d 329 [2007]).
"At any time during its deliberation, the jury may request the court for further instruction orinformation with respect to the law, with respect to the content or substance of any trial evidence,or with respect to any other matter pertinent to the jury's consideration of the case. Upon such arequest, the court . . . must give such requested information or instruction as thecourt deems proper" (CPL 310.30). Pursuant to CPL 310.30, "[t]he jury can request a reading ofnot only evidentiary material, but also any material which is pertinent to its deliberation,including the summations, and the trial court must give such requested information or instructionas [it] deems proper" (People v Velasco, 77 NY2d 469, 474 [1991] [internal quotationmarks omitted]). Here, the Supreme Court providently exercised its discretion in permitting thechart used by the prosecutor during summation as a demonstrative aid to be displayed to the juryin the courtroom in response to a note from the jury requesting the chart (see id. at 474).The court instructed the jury that the demonstrative aid was not evidence, that it was not asubstitute for evidence, and did not provide copies or permit the jury to view the demonstrativeaid in the jury room (see People v Anderson, 29 NY3d at 73).
The defendant's contention, raised in his main brief and his pro se supplemental brief, that hewas deprived of the effective assistance of counsel is based, in part, on matter appearing on therecord and, in part, on matter outside the record, and, thus, constitutes a "mixed claim ofineffective assistance" (People vMaxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]). Since thedefendant's claim of ineffective assistance of counsel cannot be resolved without reference tomatter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing theclaim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant's contention, raised in his pro se supplemental brief, that the Peoplecommitted a Brady violation (see Brady v Maryland, 373 US 83 [1963]) is basedon matter dehors the record and is not reviewable on direct appeal (see People v Krivoi, 81 AD3d 978,979 [2011]).
Contrary to the defendant's contention, raised in his pro se supplemental brief, the SupremeCourt providently exercised its discretion in permitting amendment of, inter alia, those counts ofthe indictment charging reckless endangerment in the first degree (see Penal Law§ 120.25) and kidnapping in the first degree (see Penal Law§ 135.25 [2] [a]) by expanding the relevant time periods. The amendment did notchange the theory or theories of the prosecution and did not tend to prejudice the defendant onthe merits (see CPL 200.70 [1]; People v Sinha, 84 AD3d 35, 44-45 [2011], affd 19 NY3d932 [2012]; People v Kent, 79AD3d 52, 71 [2010], mod 19 NY3d 290 [2012]; People v Straniero, 17 AD3d 161, 161 [2005]).
Also contrary to the defendant's contention, raised in his pro se supplemental brief, thePeople established the authenticity of certain evidence seized from the defendant's apartment byproviding testimony that the offered evidence was genuine and had not been tampered with (see People v Price, 29 NY3d 472,476 [2017]; People v Julian, 41 NY2d 340, 342-343 [1977]). Any deficiencies in thechain of custody went only to the weight to be given to the evidence, and not to its admissibility(see People v Hawkins, 11 NY3d484, 494 [2008]; People v Julian, 41 NY2d at 344; People v Ventura, 172 AD3d1252, 1252 [2019]). Similarly, any possible contamination resulting from the police officer'salleged mishandling of the evidence went to the weight rather than to the admissibility of theevidence (see People v Ortiz, 80AD3d 628, 630 [2011]).
Inasmuch as the defendant made an application to discharge a prospective juror, he cannotnow be heard to complain, as he does in his pro se supplemental brief, that the Supreme Courtshould not have granted that application and discharged that prospective juror (see People v Ogletree, 172 AD3d754, 754 [2019]; People vThomas, 129 AD3d 1110, 1110 [2015]; People v Kessler, 122 AD3d 1402, 1404-1405 [2014]).
Similarly, since defense counsel consented to the Supreme Court's proposed charge ofkidnapping in the first degree (see Penal Law § 135.25 [2] [a]), thedefendant cannot be heard to complain, as he does in his pro se supplemental brief, that thecourt's charge was improper.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Balkin, Roman and Barros, JJ., concur.