PEOPLE v. JOHNSON (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (David S. Zuckerman, J.), rendered November 13, 2019, convicting him of attempted assault in the first degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

For his acts of attempting to strike two different men about their heads with a metal baseball bat, the defendant was convicted of two counts of attempted assault in the first degree and one count of criminal possession of a weapon in the third degree.

The defendant failed to preserve for appellate review his contention that a detective who was not a witness to the crimes in question was improperly permitted to testify as to his familiarity with the defendant, such that he believed that the voice of an individual in certain surveillance recordings was that of the defendant (see CPL 470.05[2];  People v. Jackson, 151 A.D.3d 746, 746–747, 56 N.Y.S.3d 265).  After the County Court sustained defense counsel's initial objection to the line of questioning, defense counsel did not move to strike the testimony, seek limiting instructions, or move for a mistrial.  Thus, the court's disposition of the matter “must be deemed to have corrected the 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. Rodriguez, 172 A.D.3d 1240, 1242, 102 N.Y.S.3d 49;  People v. Anselmo, 164 A.D.3d 1462, 84 N.Y.S.3d 214).  In any event, the detective's testimony did not deprive the defendant of a fair trial since it did not implicate him in any prior misconduct or uncharged crime (see People v. Martinez, 164 A.D.3d 1260, 1262, 83 N.Y.S.3d 677;  People v. Woody, 9 A.D.3d 439, 780 N.Y.S.2d 168).  With regard to the prosecutor's elicitation of testimony from the same detective that a person referenced by the defendant in surveillance recordings was now deceased, the court gave a sufficient curative instruction following defense counsel's objection, “and the jury is presumed to have followed it” (People v. Maitland, 136 A.D.3d 1058, 1059, 26 N.Y.S.3d 190 [internal quotation marks omitted];  People v. Ross, 262 A.D.2d 429, 430, 693 N.Y.S.2d 50).

The defendant's challenge to comments made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2];  People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017;  People v. Mosquero, 128 A.D.3d 985, 10 N.Y.S.3d 137).  In any event, contrary to the defendant's contentions, the challenged comments made by the prosecutor during summation constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564), and were responsive to arguments and theories presented in defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Molinaro, 62 A.D.3d 724, 724–725, 880 N.Y.S.2d 91).

Moreover, the County Court properly admitted into evidence the audiotapes of a telephone call to the 911 emergency number under the present sense impression exception to the hearsay rule, as the caller's comments indicated that she was observing the subject crimes as they occurred (see People v. Buie, 86 N.Y.2d 501, 506, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Williams, 208 A.D.3d 1263, 1265, 174 N.Y.S.3d 275;  People v. McCall, 80 A.D.3d 626, 627, 914 N.Y.S.2d 291).  The audiotapes were also properly admitted under the excited utterance exception to the hearsay rule.  The surrounding circumstances supported the conclusion “that the remarks were not made under the impetus of studied reflection” (People v. Melendez, 296 A.D.2d 424, 425, 744 N.Y.S.2d 485;  see People v. Maitland, 136 A.D.3d 1058, 26 N.Y.S.3d 190).

The defendant further contends that the People failed to establish that he committed the crimes charged (see Penal Law §§ 110.00, 120.10[1];  265.02[1]).  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 defendant's intent to cause serious physical injury (see Penal Law § 10.00[10]) with a metal baseball bat may be inferred from the testimony of a witness, as well as video surveillance evidence showing the defendant swinging the bat at the heads of two different individuals (see People v. McGrier, 205 A.D.3d 431, 167 N.Y.S.3d 80;  People v. Ekwegbalu, 131 A.D.3d 982, 984, 15 N.Y.S.3d 847;  People v. Persaud, 25 A.D.3d 626, 626–627, 808 N.Y.S.2d 723;  People v. Jones, 196 A.D.2d 889, 890, 602 N.Y.S.2d 159;  People v. Aveille, 148 A.D.2d 461, 538 N.Y.S.2d 615).  Moreover, it was “unnecessary for the police to recover the weapon in order to prove his guilt beyond a reasonable doubt” (People v. Wade, 274 A.D.2d 438, 439, 710 N.Y.S.2d 626).  In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference 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.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.