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

The PEOPLE of the State of New York, Respondent, v. John Henry MONK, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., CENTRA, 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 murder in the first degree (Penal Law § 125.27[1] [a][vii] ), burglary in the first degree (§ 140.30[3] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, Supreme Court properly refused to admit his medical records in evidence.   It is well settled that “[t]rial courts are accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal” (People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084).   Here, the court determined that defendant's medical records were relevant insofar as the theory of the defense was that defendant was physically incapable of entering the victim's home by climbing on top of a garbage tote.   Nevertheless, the court did not abuse its discretion in refusing to admit those medical records in evidence without additional expert medical testimony inasmuch as, without such explanatory testimony, the jury would necessarily engage in impermissible speculation whether defendant's prior back surgery and subsequent treatment would have made it difficult, if not impossible, for defendant to enter the victim's home in the manner alleged by the People (see People v. Young, 295 A.D.2d 631, 632, 745 N.Y.S.2d 177, lv. denied 99 N.Y.2d 541, 752 N.Y.S.2d 602, 782 N.E.2d 580;  cf. People v. Smith, 195 A.D.2d 265, 266, 599 N.Y.S.2d 582).   Defendant failed to preserve for our review his further contention that he was denied a fair trial by prosecutorial misconduct (see People v. Cox, 21 A.D.3d 1361, 1363-1364, 802 N.Y.S.2d 813, lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161;  People v. Crawford, 299 A.D.2d 848, 749 N.Y.S.2d 447, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739, 99 N.Y.2d 653, 760 N.Y.S.2d 118, 790 N.E.2d 292), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

 Contrary to defendant's contention, “[t]he court's Sandoval compromise ․ reflects a proper exercise of the court's discretion” (People v. Thomas, 305 A.D.2d 1099, 759 N.Y.S.2d 720, lv. denied 100 N.Y.2d 600, 766 N.Y.S.2d 175, 798 N.E.2d 359;  see People v. Martinez, 294 A.D.2d 933, 935, 742 N.Y.S.2d 754, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232;  People v. Brockway, 277 A.D.2d 482, 485, 715 N.Y.S.2d 476).   We further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The DNA evidence placed defendant in the victim's kitchen, and the additional evidence presented by the People established that defendant could not be eliminated as the contributor of the DNA found on the stockings used to tie the victim's hand to the bed and the DNA found underneath the victim's fingernails.   It was within the province of the jury to discredit the explanations of defendant for the presence of his blood and DNA at the crime scene (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We note in particular that defendant gave differing accounts with respect to when he was last at the victim's home and the manner in which he had cut himself.   In addition, the testimony of the jailhouse informant was not incredible as a matter of law (see People v. Pace, 305 A.D.2d 984, 985, 758 N.Y.S.2d 568, lv. denied 100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488;  People v. Batista, 235 A.D.2d 631, 631-632, 652 N.Y.S.2d 645, lv. denied 89 N.Y.2d 1088, 660 N.Y.S.2d 382, 682 N.E.2d 983).   We conclude that “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) based, inter alia, on the conflicting evidence presented at trial with respect to defendant's ability to walk unaided and the testimony that the cigarette butts with another person's DNA were found 12 to 14 feet from the broken window and thus were unrelated to the incident.   Finally, the sentence is not unduly harsh or severe.

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