PEOPLE v. YOUNG (2019)

DECISION & ORDER

ORDERED that the judgment is modified, on the law, by vacating the defendant's adjudication as a second violent felony offender;  as so modified, the judgment is affirmed.

The defendant was convicted of murder in the second degree for strangling the victim in her residence in Staten Island in 2005.  Approximately 10 days after the victim's death, the police discovered the victim's body in a barrel behind a building in Brooklyn.  The defendant, who was on parole at the time of the offense, failed to appear for his appointment with his parole officer, and fled the country.  He was arrested in 2014, after he returned to the United States.

Contrary to the defendant's contention, the People established by a preponderance of the evidence that venue was proper in Richmond County (see People v. Greenberg, 89 N.Y.2d 553, 555–556, 656 N.Y.S.2d 192, 678 N.E.2d 878;  People v. Ribowsky, 77 N.Y.2d 284, 291–292, 567 N.Y.S.2d 392, 568 N.E.2d 1197;  People v. Auguste, 151 A.D.3d 734, 734, 56 N.Y.S.3d 343).

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), there was legally sufficient evidence to establish the defendant's identity as the perpetrator beyond a reasonable doubt.  That evidence consisted of forensic DNA evidence, coupled with the evidence of the defendant's flight shortly after the homicide (see People v. Drummond, 143 A.D.3d 836, 837, 39 N.Y.S.3d 208;  People v. Moss, 138 A.D.3d 761, 761, 29 N.Y.S.3d 452;  People v. Dolan, 2 A.D.3d 745, 746, 768 N.Y.S.2d 654).  Moreover, 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 evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The Supreme Court did not improvidently exercise its discretion in connection with its Molineux ruling (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286), authorizing the admission of evidence that the defendant, after regularly appearing for his parole appointments, absconded from parole and fled the country subsequent to the crime.  That evidence, which was admitted with limiting instructions, demonstrated the defendant's consciousness of guilt (see People v. Babb, 68 A.D.3d 887, 890 N.Y.S.2d 610;  People v. Dugan, 238 A.D.2d 922, 661 N.Y.S.2d 121).

The defendant contends that the admission of certain testimony from a detective that the defendant was identified as a suspect after the detective spoke with a member of the defendant's family deprived the defendant of his constitutional right to confront the witnesses against him.  The contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616;  People v. Perez, 9 A.D.3d 376, 377, 779 N.Y.S.2d 584).  In any event, the jury was instructed that this testimony was not admitted for its truth.  Therefore, that testimony was not testimonial in nature (see Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Ryan, 17 A.D.3d 1, 3, 790 N.Y.S.2d 723).  Further, the testimony did not directly imply that the family member implicated the defendant in the homicide (see People v. Richberg, 123 A.D.3d 946, 998 N.Y.S.2d 454).

The Supreme Court improvidently exercised its discretion in admitting into evidence two photographs of the victim taken prior to her death (see People v. Joe, 146 A.D.3d 587, 590–591, 47 N.Y.S.3d 244;  People v. Wilson, 71 A.D.3d 799, 800, 896 N.Y.S.2d 419;  People v. Donohue, 229 A.D.2d 396, 398, 645 N.Y.S.2d 60).  However, the error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error affected the verdict (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Some of the prosecutor's summation remarks were improper, including the remarks regarding the purported testimony of a police detective as to his conversations with a nonwitness, which were not fair comment on the evidence and the inferences to be reasonably drawn therefrom (cf. People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).  However, the defendant did not object to those remarks, and he therefore failed to preserve for appellate review his argument in this regard (see CPL 470.05[2];  People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589;  People v. Bell, 136 A.D.3d 838, 839, 26 N.Y.S.3d 88).  In any event, the cumulative effect of the improper remarks was not so egregious, flagrant, or pervasive as to have deprived the defendant of a fair trial (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Taylor, 120 A.D.3d 519, 521, 990 N.Y.S.2d 635;  People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431).  The remainder of the summation remarks challenged by the defendant constituted fair responses to the defense summation, fair comment on the evidence and the reasonable inferences to be drawn therefrom, or permissible rhetorical comment (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Gurdon, 153 A.D.3d 1430, 61 N.Y.S.3d 333).

The question of whether the defendant was previously convicted of a violent felony is not in issue.  However, as the People correctly acknowledge, the Supreme Court was not authorized to adjudicate the defendant a second violent felony offender since the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1];  70.04[1][a] ).  Therefore, we vacate the defendant's adjudication as a second violent felony offender.  However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant's detriment (see Penal Law § 70.04[1][a];  cf. People v. Ballinger, 99 A.D.3d 931, 932, 952 N.Y.S.2d 272;  People v. Torres, 145 A.D.2d 665, 536 N.Y.S.2d 992).  Therefore, the term of imprisonment imposed upon the defendant's conviction of a class A felony should not be disturbed.

The record, viewed in totality, shows that the defendant was afforded meaningful representation by his trial counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant's remaining contentions are without merit.

RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.