THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. VAN COTTON DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. VAN K. COTTON, DEFENDANT–APPELLANT.

KA 13–01761

Decided: September 29, 2017

PRESENT:  SMITH, J.P., DEJOSEPH, CURRAN, TROUTMAN, AND WINSLOW, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of, inter alia, manslaughter in the first degree (Penal Law

§ 125.20 [1] ), defendant contends that County Court erred in granting the People's request to charge the jury on manslaughter in the first degree as a lesser included offense of murder in the second degree

(§ 125.25[1] ). We reject that contention inasmuch as there is “ ‘a reasonable view of the evidence to support a finding that ․ defendant committed the lesser offense but not the greater’ “ (People v. Ingram, 140 AD3d 1777, 1778, quoting People v. Van Norstrand, 85 N.Y.2d 131, 135), i.e., that he intended to cause serious physical injury to the victim rather than to kill him (see People v. Atkinson, 21 AD3d 145, 147, 154, mod on other grounds 7 NY3d 765;  People v. Straker, 301 A.D.2d 667, 668, lv denied 100 N.Y.2d 587;  People v. Stevens, 186 A.D.2d 832, 832–833, lv denied 81 N.Y.2d 766).

Contrary to defendant's further contention, the court properly admitted the testimony of an eyewitness concerning his pretrial photo identification of defendant for the purpose of correcting “a misapprehension created by the defense regarding the issue of identification” (People v. Robinson, 5 AD3d 1077, 1078, lv denied 2 NY3d 805 [internal quotation marks omitted];  see People v. Williams, 142 AD3d 1360, 1361, lv. denied 28 NY3d 1128).  We agree with defendant that, under the circumstances of this case, the testimony of the investigator who administered the photo array was not necessary to correct the misapprehension, and thus the court erred in admitting the testimony of the investigator with respect to the details of the photo identification made by the eyewitness (see People v. Melendez, 55 N.Y.2d 445, 452;  see also People v. Massie, 2 NY3d 179, 182–183;  People v. Boyd, 189 A.D.2d 433, 441, lv denied 82 N.Y.2d 714).  We nevertheless conclude that the error is harmless (see Boyd, 189 A.D.2d at 441–442;  see generally People v. Crimmins, 36 N.Y.2d 230, 241–242).

Mark W. Bennett

Clerk of the Court