Opinion
07-06-2017
The PEOPLE of the State of New York, Respondent, v. Marcus KING, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Shannon Henderson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shannon Henderson of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Alvin Yearwood, J. at speedy trial motion; Judith Lieb, J. at jury trial and sentencing), rendered January 11, 2012, as amended October 29, 2015, convicting defendant of criminal possession of a weapon in the second degree (two counts) and assault in the second degree, and sentencing him to an aggregate term of 15 years, unanimously affirmed.
The court properly denied defendant's speedy trial motion. Defendant did not meet his burden of demonstrating that the People's unequivocal statement of readiness, which is "presumed truthful and accurate," was illusory (People v. Brown, 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ; see also People v. Sibblies, 22 N.Y.3d 1174, 1180, 985 N.Y.S.2d 474, 8 N.E.3d 852 [2014] ). The record supports the reasonable inference that, even if the People intended to strengthen their case by way of DNA evidence, but failed to make a timely motion for DNA testing, they had always been prepared to proceed to trial by relying solely on eyewitness testimony (see People v. Gnesin, 127 A.D.3d 652, 7 N.Y.S.3d 138 [1st Dept.2015], lv. denied 29 N.Y.3d 948, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] ; People v. Wright, 50 A.D.3d 429, 430, 855 N.Y.S.2d 475 [1st Dept.2008], lv. denied 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456 [2008] ).
The trial court providently exercised its discretion in admitting into evidence a photograph of defendant taken about a month prior to the crime to corroborate the witnesses' identification of defendant as the assailant, in that it depicted him wearing his hair in braids (see e.g. People v. King, 276 A.D.2d 319, 320, 714 N.Y.S.2d 262 [1st Dept.2000], lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 802, 745 N.E.2d 1025 [2001] ). There was nothing in the carefully redacted photograph that prejudiced defendant by suggesting that he had prior interactions with the law. The parties' stipulation satisfied any authentication requirement.
The court also providently exercised its discretion by admitting evidence about the unsuccessful attempts by police to locate defendant, after the shooting, at his place of residence and other areas he was known to frequent. This evidence could be interpreted as supporting a possible inference of consciousness of guilt, and any ambiguity as to whether the evidence warranted.
such an inference presented a factual issue for the jury (see People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963] ).
We perceive no basis for reducing the sentence.
TOM, J.P., RICHTER, MANZANET–DANIELS, MAZZARELLI, GISCHE, JJ., concur.