PEOPLE v. DAVIS (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent Del Giudice, J.), rendered October 25, 2018, convicting him of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the verdict is against the weight of the evidence because the People did not establish his identity as the shooter.  “[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable.  If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence[,] and evaluate the strength of such conclusions.  Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1).  Great deference is accorded to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the defendant's contention, defense counsel was not ineffective for failing to object to the admission of a 911 recording on Confrontation Clause grounds.  Statements made during a 911 call for the primary purpose of enabling police and medical services to meet an ongoing emergency, rather than for providing evidence for a later prosecution, are nontestimonial in nature and, thus, do not violate the Confrontation Clause (see Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224;  People v. Gittens, 214 A.D.3d 670, 671, 182 N.Y.S.3d 914).  Here, the statements in the 911 recording made by the girlfriend of one of the victims were nontestimonial.  Since any objection by defense counsel on Confrontation Clause grounds would have had little or no chance of success, his failure to object on this ground did not constitute ineffective assistance of counsel (see People v. Benjamin, 188 A.D.3d 715, 716, 131 N.Y.S.3d 895;  People v. Hale, 147 A.D.3d 975, 976, 48 N.Y.S.3d 159).

Moreover, defense counsel's failure to object or request curative instructions to certain prosecutorial remarks on summation did not deprive the defendant of the effective assistance of counsel (see People v. King, 27 N.Y.3d 147, 159–160, 31 N.Y.S.3d 402, 50 N.E.3d 869).  The record reveals that defense counsel provided meaningful representation (see People v. Alphonso, 144 A.D.3d 1168, 1169, 43 N.Y.S.3d 83;  People v. Stevenson, 129 A.D.3d 998, 999, 11 N.Y.S.3d 646).

The defendant's remaining contentions are without merit.

DUFFY, J.P., MILLER, DOWLING and LANDICINO, JJ., concur.