Opinion
2014-01-15
The PEOPLE, etc., respondent, v. Assad CEDENO, appellant.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered November 19, 2010, convicting him of gang assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review so much of an order of the same court dated December 11, 2009, as, after a hearing, denied those branches of the defendant's omnibus motion which were to suppress certain identification testimony.
ORDERED that the judgment is affirmed.
The defendant's contention that the presence of the victim's blood at the crime scene in the vicinity of certain showup identifications rendered related identification testimony inadmissible is unpreserved for appellate review ( see People v. Person, 8 N.Y.3d 973, 974, 836 N.Y.S.2d 531, 868 N.E.2d 211; People v. Waters, 91 A.D.3d 977, 937 N.Y.S.2d 620). In any event, this contention, as well as the defendant's other contentions regarding the court's denial of his motion to suppress certain identification testimony, are without merit. The pretrial showup identifications of the defendant, which took place at the scene of the crime and at the station house, were reasonable under the circumstances and were not unduly suggestive ( see People v. Ortiz, 90 N.Y.2d 533, 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337; People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Calero, 105 A.D.3d 864, 865, 962 N.Y.S.2d 665; People v. Julien, 100 A.D.3d 925, 926, 954 N.Y.S.2d 201; People v. Hicks, 78 A.D.3d 1075, 913 N.Y.S.2d 237; People v. Crumble, 43 A.D.3d 953, 842 N.Y.S.2d 35; People v. Bitz, 209 A.D.2d 709, 709–710, 619 N.Y.S.2d 158; People v. Grassia, 195 A.D.2d 607, 601 N.Y.S.2d 124; People v. Bond, 156 A.D.2d 573, 573, 549 N.Y.S.2d 80).
The defendant's contention that the trial court improperly admitted prior uncharged crime evidence against him is without merit. Such testimony established the witness's ability to identify the defendant as one of the individuals who participated in the alleged crimes ( see People v. Gines, 36 N.Y.2d 932, 932–933, 373 N.Y.S.2d 543, 335 N.E.2d 850; People v. Mobley, 58 A.D.3d 756, 756, 872 N.Y.S.2d 158). In addition, such testimony was probative of the defendant's motive and intent,and it provided necessary background information about the nature of the relationship between the witness and the defendant, placing the charged conduct in context ( see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263; People v. Till, 87 N.Y.2d 835, 837, 637 N.Y.S.2d 681, 661 N.E.2d 153; People v. Thornton, 105 A.D.3d 779, 780, 962 N.Y.S.2d 627). In light of the trial court's repeated limiting instructions, the probative value of this evidence outweighed the potential prejudice to the defendant ( see People v. Winter, 89 A.D.3d 966, 932 N.Y.S.2d 714; People v. Cornish, 280 A.D.2d 552, 553, 720 N.Y.S.2d 388).
The defendant's request for a missing witness charge with respect to two witnesses to the subject incident was properly denied by the trial court as untimely ( see People v. Whitlock, 95 A.D.3d 909, 910, 943 N.Y.S.2d 227; People v. Sealy, 35 A.D.3d 510, 826 N.Y.S.2d 358; People v. Breen, 292 A.D.2d 459, 738 N.Y.S.2d 876; People v. Woods, 275 A.D.2d 332, 712 N.Y.S.2d 407). In any event, the defendant failed to meet his burden of establishing his prima facie entitlement to such a charge ( see People v. Gonzalez, 68 N.Y.2d 424, 430, 509 N.Y.S.2d 796, 502 N.E.2d 583; People v. Whitlock, 95 A.D.3d at 910, 943 N.Y.S.2d 227; People v. Rodriguez, 77 A.D.3d 975, 976, 911 N.Y.S.2d 79; People v. Smith, 49 A.D.3d 904, 855 N.Y.S.2d 572).
The trial court's admission of codefendant Jason Villanueva's redacted statement to the police did not violate the rule articulated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, because the subject redaction would not have caused the jurors to “realize that the confession refers specifically to the defendant” (Gray v. Maryland, 523 U.S. 185, 186, 118 S.Ct. 1151, 140 L.Ed.2d 294; see People v. Borgos, 168 A.D.2d 628, 563 N.Y.S.2d 105; People v. Johnson, 162 A.D.2d 620, 620–621, 556 N.Y.S.2d 1004; People v. Marcus, 137 A.D.2d 723, 524 N.Y.S.2d 806; cf. People v. Khan, 200 A.D.2d 129, 613 N.Y.S.2d 198; People v. Hussain, 165 A.D.2d 538, 568 N.Y.S.2d 966; People v. Sutter, 162 A.D.2d 644, 556 N.Y.S.2d 959).
Furthermore, the admission of Detective Wilkowski's testimony regarding statements made to him by the defendant's self-described girlfriend did not violate the Bruton rule ( see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) or the defendant's right of confrontation ( see People v. Wilson, 101 A.D.3d 764, 765–766, 955 N.Y.S.2d 362; cf. People v. Berry, 49 A.D.3d 888, 889, 854 N.Y.S.2d 507; People v. Johnson, 7 A.D.3d 732, 777 N.Y.S.2d 190; People v. Geoghegan, 68 A.D.2d 279, 284, 416 N.Y.S.2d 802, affd. 51 N.Y.2d 45, 431 N.Y.S.2d 502, 409 N.E.2d 975). However, as the defendant correctly contends, the statements made to Wilkowski by the defendant's girlfriend constituted hearsay and, therefore, were not admissible ( see People v. Wilson, 101 A.D.3d at 765, 955 N.Y.S.2d 362; People v. Kass, 59 A.D.3d 77, 86, 874 N.Y.S.2d 475). Nevertheless, since the evidence of the defendant's guilt was overwhelming, and there is no significant probability that the error contributed to the defendant's conviction, the error was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Wilson, 101 A.D.3d at 765, 955 N.Y.S.2d 362).