Opinion
2016–11520 Ind.No. 205/15
03-11-2020
The PEOPLE, etc., Respondent, v. Curtis ALMAN, Appellant.
Warren S. Landau, Cedarhurst, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
Warren S. Landau, Cedarhurst, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to support his conviction because the prosecution failed to prove his identity as the perpetrator of the crime of which he was convicted. The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, since the circumstantial evidence established a prima facie case as to the defendant's identity as the perpetrator of the crime (see People v. Drummond , 143 A.D.3d 836, 837, 39 N.Y.S.3d 208 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson , 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo , 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero , 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant argues that a new trial is required because an eyewitness falsely testified that she had identified the defendant to police from a photograph. Any prejudice to the defendant was ameliorated by the trial court's timely instruction to the jury to disregard this portion of the eyewitness's testimony (see People v. Berg , 59 N.Y.2d 294, 299–300, 464 N.Y.S.2d 703, 451 N.E.2d 450 ). In addition, the record reveals that defense counsel was given great latitude by the court to effectively use this material during both his vigorous cross examination of the witnesses and his summation (see People v. Johnson , 139 A.D.3d 967, 976, 34 N.Y.S.3d 62, affd 31 N.Y.3d 942, 73 N.Y.S.3d 113, 96 N.E.3d 209 ; People v. Heppard , 121 A.D.2d 466, 467, 503 N.Y.S.2d 153 ). The defendant contends that the complainant's testimony about a statement made by the complainant's girlfriend was impermissible hearsay. This contention is without merit. The testimony was not admitted for the truth of the statement's content, but to evidence the fact that the statement was made in order to complete the narrative and explain the complainant's behavior (see People v. Felder , 37 N.Y.2d 779, 780–781, 375 N.Y.S.2d 98, 337 N.E.2d 606 ; People v. Dorcinvil , 122 A.D.3d 874, 876, 996 N.Y.S.2d 661 ; People v. Reynolds , 46 A.D.3d 845, 848 N.Y.S.2d 278 ). Moreover, the trial court did not violate the defendant's right to confront a witness by permitting such testimony at trial (see People v. Ewell , 12 A.D.3d 616, 616–617, 786 N.Y.S.2d 545 ), and the defendant was not entitled to a missing witness charge with regard to the complainant's girlfriend (see People v. Savinon , 100 N.Y.2d 192, 200–201, 761 N.Y.S.2d 144, 791 N.E.2d 401 ).
We also reject the defendant's contention that the trial court violated his right to a public trial by conducting certain proceedings in chambers. The record establishes that the proceedings at issue were distinct from trial proceedings that must be conducted in public (see People v. Jordan , 145 A.D.3d 584, 585, 44 N.Y.S.3d 378 ; People v. Olivero , 289 A.D.2d 1082, 735 N.Y.S.2d 327 ; see also Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 598 n. 23, 100 S.Ct. 2814, 65 L.Ed.2d 973 ).
The defendant's contention that the trial court's Allen charge (see Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 ) was coercive is unpreserved for appellate review, since defense counsel did not object to the instructions given by the court (see CPL 470.05[2] ; People v. Coad , 60 A.D.3d 963, 964, 876 N.Y.S.2d 107 ). In any event, the court's Allen charge was not coercive (see People v. Applewhite , 50 A.D.3d 1046, 1047, 856 N.Y.S.2d 230 ) and, on the whole, was balanced and neutral in tone and directed at the jurors in general (see People v. Pagan , 45 N.Y.2d 725, 727, 408 N.Y.S.2d 473, 380 N.E.2d 299 ; People v. Coad , 60 A.D.3d at 965, 876 N.Y.S.2d 107 ; People v. Gonzales, 281 A.D.2d 432, 721 N.Y.S.2d 772 ).
The defendant's contention that a mode of proceedings error occurred because the trial court did not comply precisely with CPL 310.30 in accordance with the requirements of People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 in response to jury notes is also without merit. The defendant and defense counsel were clearly afforded meaningful notice of the jury's requests prior to the time the court gave the jury any information or instruction (see People v. Santi , 3 N.Y.3d 234, 249, 785 N.Y.S.2d 405, 818 N.E.2d 1146 ; People v. Lykes , 81 N.Y.2d 767, 770, 593 N.Y.S.2d 779, 609 N.E.2d 132 ). The court's requests for clarification as to what the jury wanted were appropriate, and "[d]efense counsel had an opportunity to participate after the clarification was received from the jury and before the court gave the reinstruction as to the legal definitions of the crimes charged" ( People v. Lykes , 81 N.Y.2d at 770, 593 N.Y.S.2d 779, 609 N.E.2d 132 ).
The defendant's remaining contentions are without merit.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.