PEOPLE v. BOLLING (2008)

 On appeal from a judgment convicting him upon a jury verdict of murder in second degree (Penal Law § 125.25[2] [depraved indifference murder] ), defendant contends that the conviction is not supported by legally sufficient evidence.   We agree.   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally insufficient to prove beyond a reasonable doubt that defendant “acted with the culpable mental state of depraved indifference” (People v. Swinton, 7 N.Y.3d 776, 777, 820 N.Y.S.2d 537, 853 N.E.2d 1105, rearg. denied 7 N.Y.3d 864, 824 N.Y.S.2d 609, 857 N.E.2d 1140;  see People v. Feingold, 7 N.Y.3d 288, 294, 819 N.Y.S.2d 691, 852 N.E.2d 1163;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The evidence does not warrant a finding that defendant's conduct demonstrated the “utter disregard for the value of human life” necessary to support the conviction of depraved indifference murder (People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721).   We therefore modify the judgment by reducing the conviction of murder in the second degree to manslaughter in the second degree (§ 125.15[1] ) and vacating the sentence (see CPL 470.15[2][a] ), and we remit the matter to County Court for sentencing on the conviction of manslaughter in the second degree (see CPL 470.20[4] ).

 None of defendant's remaining contentions warrants reversal or further modification of the judgment.   Contrary to the contention of defendant, the court properly admitted the testimony of a police officer with respect to the out-of-court declaration of the victim under the excited utterance exception to the hearsay rule (see People v. McClary, 21 A.D.3d 1427, 1428, 802 N.Y.S.2d 825, lv. denied 5 N.Y.3d 884, 808 N.Y.S.2d 586, 842 N.E.2d 484;  see generally People v. Johnson, 1 N.Y.3d 302, 305-306, 772 N.Y.S.2d 238, 804 N.E.2d 402).   Defendant failed to preserve for our review his contention that the testimony of the police officer violated his constitutional right of confrontation (cf. People v. Douglas, 4 N.Y.3d 777, 779, 793 N.Y.S.2d 825, 826 N.E.2d 796;  see generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177).   In any event, we conclude that the statement of the victim to the police officer was made during the course of an “ongoing emergency” and thus was not testimonial (People v. Nieves-Andino, 9 N.Y.3d 12, 15, 840 N.Y.S.2d 882, 872 N.E.2d 1188;  see People v. Bradley, 8 N.Y.3d 124, 127-128, 830 N.Y.S.2d 1, 862 N.E.2d 79).

 Contrary to the further contention of defendant, the court did not abuse its discretion in denying his motion to sever his trial from that of a codefendant.   The “core of each defense [was not] in irreconcilable conflict with the other and ․ there [was no] significant danger, as both defenses [were] portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt” (People v. Mahboubian, 74 N.Y.2d 174, 184, 544 N.Y.S.2d 769, 543 N.E.2d 34;  see People v. Cruz, 66 N.Y.2d 61, 73-74, 495 N.Y.S.2d 14, 485 N.E.2d 221, revd. on other grounds 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162).  “[T]he fact that [the codefendant's attorney] stressed the relative weakness of the case against his client did not present an irreconcilable conflict warranting severance” (People v. Peisahkman, 29 A.D.3d 352, 353, 814 N.Y.S.2d 609;  cf. People v. McGriff, 219 A.D.2d 829, 829-830, 631 N.Y.S.2d 969).   Also contrary to defendant's contention, the codefendant's attorney did not act as a “second prosecutor” (People v. Cardwell, 78 N.Y.2d 996, 998, 575 N.Y.S.2d 267, 580 N.E.2d 753).

Defendant failed to preserve for our review his contention that the charge on the defense of justification should have preceded the reading of the elements of the crime (see generally People v. Robinson, 88 N.Y.2d 1001, 1001-1002, 648 N.Y.S.2d 869, 671 N.E.2d 1266).   In any event, we note that this Court previously determined that the justification charge at issue “was a correct statement of the law when viewed in its entirety ․ and adequately conveyed to the jury ‘the correct principles of law to be applied to the case’ ” (People v. Bolling, 24 A.D.3d 1195, 1197, 807 N.Y.S.2d 765, affd. 7 N.Y.3d 874, 826 N.Y.S.2d 174, 859 N.E.2d 913, quoting People v. Ladd, 89 N.Y.2d 893, 896, 653 N.Y.S.2d 259, 675 N.E.2d 1211).   Moreover, the Court of Appeals determined in the appeal of the codefendant that no charge on the defense of justification was required and thus that any error in that charge was harmless (see Bolling, 7 N.Y.3d at 875, 826 N.Y.S.2d 174, 859 N.E.2d 913).   Contrary to the further contentions of defendant, the court did not err in failing to include the defense of justification on the verdict sheet (see People v. Dempsey, 177 A.D.2d 1018, 578 N.Y.S.2d 290, lv. denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808), nor did the court err in failing to include that defense in a supplemental instruction to the jury inasmuch as the jury did not request a supplemental instruction on that defense (see People v. Almodovar, 62 N.Y.2d 126, 131-132, 476 N.Y.S.2d 95, 464 N.E.2d 463;  see also People v. Guerrero-Rivera, 236 A.D.2d 837, 838, 654 N.Y.S.2d 224, lv. denied 89 N.Y.2d 1093, 660 N.Y.S.2d 387, 682 N.E.2d 988).

 We reject the further contention of defendant that he was denied a fair trial by prosecutorial misconduct on summation.   The comments in question were fair response to the summation of the codefendant's attorney (see People v. Smith, 32 A.D.3d 1291, 1292, 821 N.Y.S.2d 356, lv. denied 8 N.Y.3d 849, 830 N.Y.S.2d 708, 862 N.E.2d 800).   In any event, the court gave an immediate curative instruction following defendant's objection to those comments, and defendant did not object further or request a mistrial.   Thus, the court's curative instruction “must be deemed to have corrected [any] error to the defendant's satisfaction” (People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  see People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588).   In light of our decision, we do not address defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the conviction of murder in the second degree (Penal Law § 125.25[2] ) to manslaughter in the second degree (§ 125.15[1] ) and vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for sentencing on the conviction of manslaughter in the second degree.

MEMORANDUM: