PEOPLE v. JONES (2022)

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J. at suppression hearing;  Lester B. Adler, J. at jury trial and sentencing), rendered May 10, 2016, convicting defendant of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 20 years to life, unanimously affirmed.

The court properly denied defendant's motion to suppress his oral and written statements confessing to the crime.  The record supports the hearing court's finding that defendant received Miranda warnings before voluntarily making the statements.  “There is no basis for disturbing the court's credibility determinations, including its resolution of any alleged discrepancy between police testimony and paperwork” (People v. Armstead, 163 A.D.3d 403, 403, 80 N.Y.S.3d 254 [1st Dept. 2018], lv denied 32 N.Y.3d 1109, 91 N.Y.S.3d 360, 115 N.E.3d 632 [2018]).  Possible errors by detectives in recalling, approximating, or recording the times at which events relating to defendant's statement occurred do not cast any doubt on the credibility of a detective's unequivocal testimony that defendant received the warnings before making the statement.

The trial court, which properly admitted as an excited utterance the victim's statement at the scene of the crime identifying defendant as his assailant, correctly declined to charge the jury on the subject of dying declarations.  “Unlike dying declarations, excited utterances do not require special instructions to the jury” (People v. Corbin, 284 A.D.2d 408, 408, 726 N.Y.S.2d 282 [2d Dept. 2001], lv denied 96 N.Y.2d 917, 732 N.Y.S.2d 634, 758 N.E.2d 660 [2001]).  The record fails to support defendant's assertion that the excited utterance was effectively a dying declaration.  The evidence did not establish the core requirement of a dying declaration, that the dying person was “under a sense of impending death, with no hope of recovery” (People v. Nieves, 67 N.Y.2d 125, 132, 501 N.Y.S.2d 1, 492 N.E.2d 109 [1986]), and the prosecutor made no such claim in summation.

The challenged portions of the prosecutor's summation did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).  To the extent there were any improprieties, the court's curative actions were sufficient to prevent prejudice.

Because the jury convicted defendant of second-degree murder without considering the submitted lesser included offense of first-degree manslaughter, defendant's challenge to the court's refusal to charge the more remote lesser included offense of second-degree manslaughter is foreclosed (see People v. McIntosh, 33 N.Y.3d 1064, 104 N.Y.S.3d 46, 128 N.E.3d 173 [2019]).  Defendant's arguments to the contrary are unavailing.

We perceive no basis for reducing the sentence.