PEOPLE v. FOY (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn Laporte, J.), rendered November 1, 2017, convicting him of attempted assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the evening of May 6, 2016, half brothers Patrick Chrone and David Cenevil left their home in East New York and proceeded toward a nearby store, Chrone on foot and Cenevil on a bicycle.  Shortly thereafter, Chrone noticed his stepfather, the defendant, sitting in his car which was parked on the street.  Chrone had been watching for the defendant because he had been antagonizing and harassing Chrone for several weeks prior to the incident.  The defendant then drove his car into Cenevil.  The defendant briefly stopped and then drove away.  Cenevil was taken by ambulance to Brookdale Hospital, where he underwent brain surgery and remained there for approximately five days.

The defendant was charged with, inter alia, attempted assault in the first degree, assault in the second degree, and leaving the scene of an accident without reporting.  Upon a jury verdict, the defendant was convicted of attempted assault in the first degree.  The defendant was sentenced to 11 years' imprisonment, followed by a five-year period of post-release supervision.  The defendant appeals.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in permitting the People to elicit evidence of a domestic violence incident that occurred on April 15, 2016 (see People v. Bittrolff, 165 A.D.3d 690, 690, 85 N.Y.S.3d 181).  The People offered the evidence not to demonstrate the defendant's propensity to commit the crime charged, but to establish his motive, identity, and intent, as well as to complete the narrative (see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160;  People v. Harris, 117 A.D.3d 847, 854, 985 N.Y.S.2d 643, affd 26 N.Y.3d 1, 18 N.Y.S.3d 583, 40 N.E.3d 560).  The People's theory of the case was that, when the defendant intentionally drove his car into Cenevil, he was seeking revenge on Cenevil and Chrone for interfering in the April 15, 2016, domestic violence incident, in which the defendant assaulted their mother and was arrested.  Further, the court providently exercised its discretion in weighing the evidence's probative value against its prejudicial effect (see People v. Bittrolff, 165 A.D.3d at 691, 85 N.Y.S.3d 181;  cf. People v. Ramirez, 180 A.D.3d 811, 813, 117 N.Y.S.3d 696).  Moreover, the court gave the jury appropriate limiting instructions, to which defense counsel did not object, as to the limited purpose for which that evidence was admitted (see People v. Bittrolff, 165 A.D.3d at 691, 85 N.Y.S.3d 181;  People v. Townsend, 100 A.D.3d 1029, 1031, 954 N.Y.S.2d 221).

The defendant's contentions that the Supreme Court should not have admitted into evidence the “sprint report” of the 911 calls from April 15, 2016, because it did not fall within the business records exception to the hearsay rule and no other hearsay exception applied are unpreserved for appellate review (see People v. McAllister, 264 A.D.2d 742, 743, 694 N.Y.S.2d 755), and we decline to review these contentions in the exercise of our interest of justice jurisdiction.

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in declining to give an adverse inference charge based upon the People's failure to preserve the audio recordings of the 911 calls from April 15, 2016.  There was no showing of bad faith or lack of due diligence on the part of the People or prejudice to the defendant, and a sprint report of the calls was supplied (see People v. Perkins, 124 A.D.3d 915, 916, 2 N.Y.S.3d 220, revd on other grounds 28 N.Y.3d 432, 45 N.Y.S.3d 860, 68 N.E.3d 679;  People v. Brown, 92 A.D.3d 455, 456, 937 N.Y.S.2d 230;  People v. Wallace, 293 A.D.2d 556, 557, 739 N.Y.S.2d 838;  People v. Marengo, 276 A.D.2d 358, 359, 714 N.Y.S.2d 43;  People v. Green, 244 A.D.2d 423, 423, 665 N.Y.S.2d 567).

We agree with the Supreme Court's determination to admit into evidence a recording of a 911 call made by Chrone under the “excited utterance” and “present sense impression” exceptions to the hearsay rule (see People v. Almonte, 33 N.Y.3d 1083, 1084, 106 N.Y.S.3d 277, 130 N.E.3d 873;  People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877;  People v. Brown, 80 N.Y.2d 729, 732, 594 N.Y.S.2d 696, 610 N.E.2d 369;  People v. Parchment, 92 A.D.3d 699, 699, 938 N.Y.S.2d 174).

Contrary to the defendant's contention the Supreme Court providently exercised its discretion in allowing a physician's assistant to provide expert testimony regarding Cenevil's brain injury and treatment (see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d 843, 847, 27 N.Y.S.3d 164;  Lavi v. NYU Hosps. Ctr., 133 A.D.3d 830, 831, 21 N.Y.S.3d 143).  “As a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court” (People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63;  see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d at 847, 27 N.Y.S.3d 164).

The defendant's contentions regarding alleged prosecutorial misconduct during summation are partially unpreserved for appellate review (see CPL 470.05[2];  People v. Fletcher, 130 A.D.3d 1063, 1065, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111), and, in any event, the challenged remarks were either permissible rhetorical comment (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Macuil, 67 A.D.3d 1025, 1026, 888 N.Y.S.2d 764), fair response to the arguments and issues raised by the defense (see People v. Halm, 81 N.Y.2d 819, 595 N.Y.S.2d 380, 611 N.E.2d 281), fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564), or, if improper, were not so egregious as to deprive the defendant of a fair trial (see People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431;  People v. Pocesta, 71 A.D.3d 920, 921, 895 N.Y.S.2d 871).

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

SCHEINKMAN, P.J., AUSTIN, IANNACCI and WOOTEN, JJ., concur.