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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jamar T. JONES, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1] ) and attempted murder in the second degree (§§ 110.00, 125.25 [1] ).   We reject the contention of defendant that he was denied a fair trial when County Court allowed the People to present the testimony of a witness concerning a prior physical altercation between defendant and that witness.   The altercation occurred approximately 10 to 14 days prior to the commission of the crimes of which he ultimately was convicted, and testimony concerning that prior altercation was relevant in establishing defendant's motive for shooting at a group of men that included the witness (see People v. Trumbach, 31 A.D.3d 1054, 1055, 818 N.Y.S.2d 857;  People v. Williams, 27 A.D.3d 673, 811 N.Y.S.2d 124, lv. denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290;  see also People v. James, 19 A.D.3d 616, 797 N.Y.S.2d 129, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159).   Contrary to defendant's contention, the probative value of the testimony concerning the prior altercation outweighed its prejudicial effect (see Trumbach, 31 A.D.3d at 1055, 818 N.Y.S.2d 857;  Williams, 27 A.D.3d 673, 811 N.Y.S.2d 124).   Contrary to defendant's further contention, evidence of the prior altercation was also properly admitted to establish defendant's identity (see People v. Davis, 220 A.D.2d 682, 633 N.Y.S.2d 791, lv. denied 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260;  cf. People v. Austin, 13 A.D.3d 1196, 1197, 786 N.Y.S.2d 882, lv. denied 5 N.Y.3d 785, 801 N.Y.S.2d 805, 835 N.E.2d 665).

 We reject the further contention of defendant that he was denied a fair trial by the admission in evidence of certain autopsy photographs of the murder victim.  “The general rule is that photographs of the deceased are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered” (People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637, rearg. denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).  “Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (id. at 370, 345 N.Y.S.2d 482, 298 N.E.2d 637).   Here, the three photographs at issue were relevant to prove the identity of the murder victim, to show an intent to kill and to corroborate the Medical Examiner's testimony concerning the cause of death, and thus the court did not abuse its discretion in admitting the photographs in evidence (see People v. Law, 273 A.D.2d 897, 898, 710 N.Y.S.2d 223, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 483, 745 N.E.2d 403;   People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449).

 There also is no merit to the contention of defendant that his due process rights were violated by an unduly suggestive pretrial photo array identification procedure.   Generally, “[a] photographic array must contain only photographs of individuals who are of similar age and appearance to the suspect” (People v. Means, 35 A.D.3d 975, 975, 824 N.Y.S.2d 821, lv. denied 8 N.Y.3d 948, 836 N.Y.S.2d 558, 868 N.E.2d 241).   Here, the individuals depicted were not all similar in appearance because the police had not yet focused on defendant as a particular suspect, and the police showed the witness over 50 photographs before he identified defendant (see People v. Burgos, 204 A.D.2d 344, 611 N.Y.S.2d 605;  People v. Campos, 197 A.D.2d 366, 602 N.Y.S.2d 134, lv. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469).   Inasmuch as “[t]he composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness would be drawn to defendant as the suspect chosen by the police,” it cannot be said that the photo array was unduly suggestive (People v. Sylvester, 32 A.D.3d 1226, 1227, 821 N.Y.S.2d 345, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000;  see People v. Ofield, 280 A.D.2d 978, 979, 720 N.Y.S.2d 678, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213;  People v. Brown, 169 A.D.2d 934, 935, 564 N.Y.S.2d 834, lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580).   Defendant further contends that the identification procedure was unduly suggestive because the witness saw the surnames of the individuals depicted in the photographs.   We reject that contention.   The witness told the police that he did not know the last name of the perpetrator, and thus defendant failed to meet his burden of establishing that the attention of the witness was drawn to defendant's photograph because he saw defendant's surname.

 We also reject defendant's contention that the court failed to exercise its discretion at the time of sentencing because, during a midtrial plea negotiation, the court stated that it would consider imposing concurrent sentences only if defendant accepted the plea agreement, and the court ultimately imposed a consecutive sentence for the count of attempted murder.   “The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” (People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864).   Here, the record establishes that the court was aware of and considered all relevant factors, including those set forth in the presentence report, and exercised its discretion in sentencing defendant (see People v. Pedraza, 66 N.Y.2d 626, 495 N.Y.S.2d 30, 485 N.E.2d 237;  People v. Fordley, 55 A.D.2d 974, 390 N.Y.S.2d 665).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.