PEOPLE v. JOHNSON

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

The PEOPLE, etc., respondent, v. Gregory JOHNSON, appellant.

2013–08768

Decided: March 14, 2018

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ. Paul Skip Laisure, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered July 2, 2013, as amended August 1, 2013, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), attempted robbery in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence (three counts), upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing (Richard L. Buchter, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.

ORDERED that the judgment, as amended, is affirmed.

Contrary to the defendant's contention, the verdict finding him guilty of both counts of murder in the second degree, while acquitting him of murder in the first degree, was not legally repugnant.  “[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” (People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. DeLee, 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210).  In determining whether a verdict is legally repugnant, the court reviews “the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial” (People v. Muhammad, 17 N.Y.3d at 542, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617).  “If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” (People v. Muhammad, 17 N.Y.3d at 540, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. DeLee, 24 N.Y.3d at 608, 2 N.Y.S.3d 382, 26 N.E.3d 210).  Viewing the elements of the offenses as charged to the jury here, the acquittal on the count of murder in the first degree did not negate any of the elements of the counts of murder in the second degree (see generally People v. Harris, 98 A.D.3d 420, 949 N.Y.S.2d 378).  To the extent that the defendant contends that the verdict should not be permitted to stand because of particular factual inconsistencies in it, his claim is without merit (cf. People v. Muhammad, 17 N.Y.3d at 545, 935 N.Y.S.2d 526, 959 N.E.2d 463; People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694; People v. Bess, 142 A.D.3d 1098, 1099, 37 N.Y.S.3d 606; People v. Chavez, 139 A.D.3d 1082, 1083, 31 N.Y.S.3d 603; People v. Choi, 137 A.D.3d 808, 809, 26 N.Y.S.3d 333).

Contrary to the defendant's contention, he was not deprived of a fair trial because the prosecutor used electronic slides during summation to display, in question format, most of the elements of the charged crimes to the jury.  The defendant does not assert that the questions set forth on the slides were inaccurate, and copies of the slides were not given to the jury to review during deliberations (see People v. Baker, 14 N.Y.3d 266, 273, 899 N.Y.S.2d 733, 926 N.E.2d 240; People v. Nash, 273 A.D.2d 696, 699, 710 N.Y.S.2d 157; People v. Goodman, 190 A.D.2d 862, 863, 593 N.Y.S.2d 873).  The slides were not improper (see People v. Baker, 14 N.Y.3d at 273, 899 N.Y.S.2d 733, 926 N.E.2d 240).  Moreover, the Supreme Court's instructions were sufficient to dispel any possibility that the jury would give precedence or place undue emphasis on the prosecutor's use of the slides (see id.).  Jurors are presumed to follow the legal instructions they are given (see id.; People v. McManus, 150 A.D.3d 762, 53 N.Y.S.3d 368; People v. Tohom, 109 A.D.3d 253, 268, 969 N.Y.S.2d 123).  Additionally, to the extent that the prosecutor improperly vouched for the credibility of one of the People's witnesses and displayed a slide with accompanying text that highlighted the prosecutor's statement during summation, this error was not so egregious as to deprive the defendant of a fair trial (see People v. Choi, 137 A.D.3d at 810, 26 N.Y.S.3d 333; People v. Tiro, 100 A.D.3d 663, 952 N.Y.S.2d 893).

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

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review, and we decline to reach them in the exercise of our interest of justice jurisdiction.

BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.