PEOPLE v. THOMAS

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The PEOPLE, etc., respondent, v. Richard THOMAS, appellant.

Decided: October 03, 2012

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Hollie, J.), rendered November 17, 2009, and (2) and amended judgment of the same court rendered November 24, 2009, convicting him of rape in the first degree (two counts), robbery in the first degree (three counts), unlawful imprisonment in the first degree (three counts), criminal use of a firearm in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the appeal from the judgment rendered November 17, 2009, is dismissed, as that judgment was superseded by the amended judgment rendered November 24, 2009; and it is further,

ORDERED that the amended judgment is affirmed.

Photographic evidence “should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110; see People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278; People v. Sampson, 67 A.D.3d 1031, 1032, 890 N.Y.S.2d 557). When inflammatory photographs are relevant to a material issue at trial, the court has broad discretion to determine whether the probative value of the photographs outweighs any prejudice to the defendant (see People v. Stevens, 76 N.Y.2d at 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278; People v. Upshaw, 242 A.D.2d 548, 549, 662 N.Y.S.2d 268; People v. Harrison, 207 A.D.2d 359, 615 N.Y.S.2d 449). The photographs at issue here were relevant to material issues in the case, and the Supreme Court did not improvidently exercise its discretion in admitting them into evidence. Contrary to the defendant's contentions, the photographs, as redacted by the court, were not so inflammatory as to have deprived him of a fair trial.

The defendant's remaining contentions are unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach them in the exercise of our interest of justice jurisdiction.

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