| People v McClinton |
| 2020 NY Slip Op 00879 [180 AD3d 712] |
| February 5, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin McClinton, Appellant. |
Paul Skip Laisure, New York, NY (Caitlin Halpern of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Gregory Lasak, J.), rendered September 14, 2016, convicting him of murder in thesecond degree and criminal possession of a weapon in the second degree (two counts),upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25years to life on the conviction of murder in the second degree, and determinate terms ofimprisonment of 15 years on each conviction of criminal possession of a weapon in thesecond degree, with the sentence imposed on the conviction of criminal possession of aweapon in the second degree under count three of the indictment to run concurrently withthe conviction of murder in the second degree, and the sentence imposed on theconviction of criminal possession of a weapon in the second degree under count four ofthe indictment to run consecutively to the sentences imposed on the convictions ofmurder in the second degree and criminal possession of a weapon in the second degreeunder count three of the indictment.
Ordered that the judgment is modified, on the law, by providing that all of thesentences imposed shall run concurrently with each other; as so modified, the judgmentis affirmed.
The defendant preserved his challenge to the legal sufficiency of the evidencesupporting the convictions (see CPL 470.05 [2]). Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, the People did not violate their obligationsunder Brady v Maryland (373 US 83 [1963]) by improperly withholding ordelaying disclosure of information about five witnesses who either identified someoneother than the defendant as a shooter of the victim or provided a description of theshooter's clothing that was inconsistent with the clothing worn by the defendant.Brady does not require that disclosure be made at any particular point in theproceedings, but only that it be made in time for the defense to use it effectively (seePeople v Perkins, 227 AD2d 572 [1996]; People v White, 178 AD2d 674[1991]). The People provided the defendant with the names of four witnesses, as well asadditional contact information or access to witnesses. The defense was afforded anopportunity to use the information, and there is no indication that earlier disclosure mighthave had any effect on the outcome of the trial (see People v Fuentes, 12 NY3d 259 [2009]; People vVilardi, 76 NY2d 67 [1990]; People v White, 178 AD2d 674 [1991]). A fifthwitness identified the codefendant as the shooter, and this witness was never disclosed.However, because the defendant was charged with murder in the second degree on anacting-in-concert theory (seePeople v Wright, 43 AD3d 1359 [2007]), there is no reasonable possibility thatdisclosure of that witness would have changed the outcome of the trial (see People vFuentes, 12 NY3d at 263-265; People v Vilardi, 76 NY2d 67 [1990]).
The defendant's contention that he was deprived of a fair trial because the prosecutorintroduced inflammatory evidence about the background of the victim, who was 14 yearsold at the time of the incident, and graphic descriptions of her fatal head wound isunpreserved for appellate review because he failed to object at the time the evidence wasintroduced (see CPL 470.05 [2]). In any event, to the extent any of the evidencewas not relevant to a material fact to be proved at trial, any error was harmless as therewas no significant probability that the error contributed to the defendant's conviction(see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Furthermore, on thewhole, the prosecutor properly elicited evidence during the trial that was probative of thedefendant's guilt and not so prejudicial as to deprive the defendant of a fair trial (seePeople v Scarola, 71 NY2d 769, 777 [1988]; People v Alvino, 71 NY2d 233[1987]).
The defendant's contention that he was deprived of a fair trial by remarks made bythe prosecutor during her opening and closing statements is without merit. Theprosecutor's comments during her opening statement properly outlined the evidence thatshe planned to introduce at trial (see CPL 260.30 [3]; People v Kurtz, 51NY2d 380, 384 [1980]; People v Celdo, 291 AD2d 357 [2002]; People vEtoria, 266 AD2d 559 [1999]). In addition, the prosecutor properly used hersummation to comment on the evidence (see People v Ashwal, 39 NY2d 105,109-110 [1976]; People vHerb, 110 AD3d 829, 831 [2013]), to respond to arguments and theoriespresented in defense counsel's summation (see People v Gross, 88 AD3d 905, 906 [2011]), or to makepermissible rhetorical comment (see People v Ashwal, 39 NY2d at 109-110;People v Herb, 110 AD3d at 831). To the extent that the prosecutor exceeded thebounds of permissible rhetorical comment, those remarks did not deprive the defendantof a fair trial, and any other error in this regard was harmless, as there was overwhelmingevidence of the defendant's guilt, and no significant probability that any error contributedto the defendant's conviction (see People v Crimmins, 36 NY2d at 241-242; People v Torres, 72 AD3d709 [2010]).
The Supreme Court did not improvidently exercise its discretion in admitting intoevidence two autopsy photographs of the victim. The challenged photographs wereintroduced during the medical examiner's testimony and were neither excessivelygruesome nor introduced for the sole purpose of arousing the jurors' passions andprejudicing the defendant (see People v Wood, 79 NY2d 958, 960 [1992];People v Pobliner, 32 NY2d 356, 369-370 [1973]; People v Harrington, 88 AD3d817 [2011]). Rather, they were relevant to elucidate the testimony of the medicalexaminer (see People vFletcher, 84 AD3d 1265 [2011]; People v Redmon, 81 AD3d 752 [2011]; People v Sampson, 67 AD3d1031 [2009]) with regard to the manner of the victim's death. Moreover,notwithstanding that the defendant did not contest the cause of death, "the People were. . . still required to prove their case beyond a reasonable doubt and present'relevant material evidence as to [each] element of the charged crime' " (People v White, 79 AD3d1460, 1463 [2010], quoting People v Hills, 140 AD2d 71, 80 [1988]).
We agree with the defendant that the sentencing court could not lawfully direct thatthe sentence imposed upon one of the convictions of criminal possession of a weapon inthe second degree run consecutive to the sentence imposed upon the conviction ofmurder in the second degree. As the defendant correctly contends, it is impossible, basedon the indictment or the trial court's charge, to determine whether the act that formed thebasis of the jury's verdict on the criminal possession of a weapon in the second degreecounts was not the basis for its conviction on the murder in the second degree count.Therefore, the People have failed to meet their burden of proving the validity ofconsecutive sentences (seePeople v Frederick, 14 NY3d 913 [2010]; People v Alford, 14 NY3d 846 [2010]; People vParks, 95 NY2d 811 [2000]; People v Rodriguez, 79 AD3d 644 [2010], affd 18NY3d 667 [2012]). Accordingly, we modify the judgment so as to provide that all of thesentences imposed shall run concurrently with each other. The sentence imposed, asmodified, was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Leventhal, J.P., Roman, LaSalle and Christopher, JJ., concur.