PEOPLE v. REYES (2008)

Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered May 3, 2004, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that his right to confront witnesses was violated by the admission of certain statements made by two accomplices to police detectives (see People v. Marino, 21 A.D.3d 430, 431, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958).   In any event, the defendant's right to confront witnesses against him was not violated since the challenged statements were not admitted for their truth but to show the police detectives' state of mind and to demonstrate how the police investigation evolved (see Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Reynoso, 2 N.Y.3d 820, 821, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Dean, 41 A.D.3d 495, 837 N.Y.S.2d 714, lv. denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879;  People v. Leftenant, 22 A.D.3d 603, 804 N.Y.S.2d 327).

The defendant's contention that the evidence was legally insufficient to establish his guilt of murder in the second degree, as set forth in Point I of his supplemental pro se brief, is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

 The County Court providently exercised its discretion in precluding the defendant's proposed alibi testimony as the defendant failed to demonstrate good cause for his failure to provide timely notice (see CPL 250.20[1];  People v. Louisias, 29 A.D.3d 1017, 1019, 815 N.Y.S.2d 727).

 Contrary to the defendant's contention, the County Court providently exercised its discretion in admitting autopsy photographs into evidence.   The photographs were neither excessively gruesome nor introduced for the sole purpose of arousing the jurors' passions and prejudicing the defendant (see People v. Wood, 79 N.Y.2d 958, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, 32 N.Y.2d 356, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   The photographs were relevant to help illustrate and corroborate the testimony of the medical examiner (see People v. Allan, 41 A.D.3d 727, 839 N.Y.S.2d 771, lv. denied 9 N.Y.3d 920, 844 N.Y.S.2d 175, 875 N.E.2d 894;  People v. Clark, 37 A.D.3d 487, 829 N.Y.S.2d 201;  People v. Daniels, 35 A.D.3d 495, 497, 826 N.Y.S.2d 369).   The mere fact that there was other available evidence with regard to these matters did not require the exclusion of the photographs (see People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278).

The defendant's contention that the verdict sheet was improperly annotated (see CPL 310.20[2] ), as set forth in Point I of his supplemental pro se brief, is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Hicks, 12 A.D.3d 1044, 1045, 784 N.Y.S.2d 451).   In any event, that contention is without merit.

The defendant's claims of ineffective assistance of counsel, as set forth in his main brief and supplemental pro se brief, are without merit as defense counsel provided the defendant with meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).