Opinion
930 KA 19-01090
11-20-2020
The PEOPLE of the State of New York, Respondent, v. Jeffrey A. SALONE, Jr., Defendant-Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted on count two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20 [1] ). Viewing the evidence in light of the elements of that crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant's contention that County Court erred in allowing an investigating police officer to testify regarding his opinion that a homicide was committed in this case is preserved for our review only in part (see CPL 470.05 [2] ). To the extent that defendant's contention is unpreserved, we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ), and we conclude that the court erred in admitting that testimony because it " ‘usurp[ed] the jury's fact-finding function’ " ( People v. Hartzog , 15 A.D.3d 866, 867, 789 N.Y.S.2d 391 [4th Dept. 2005], lv denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005] ).
We further agree with defendant that the court erred in permitting the victim's mother to testify regarding the victim's personal background, including various aspects of the victim's life and his family relationships. It is well settled that "testimony about [a] victim['s] personal background[ ] that is immaterial to any issue at trial should be excluded" ( People v. Harris , 98 N.Y.2d 452, 490-491, 749 N.Y.S.2d 766, 779 N.E.2d 705 [2002] ; see People v. Miller , 6 N.Y.2d 152, 157-158, 188 N.Y.S.2d 534, 160 N.E.2d 74 [1959] ; People v. Caruso , 246 N.Y. 437, 443-444, 159 N.E. 390 [1927] ) and, here, the testimony of the victim's mother regarding the victim's personal background was not relevant to a material issue at trial.
We conclude that reversal is required based upon the cumulative effect of the above evidentiary errors, which substantially prejudiced defendant's rights, and that a new trial must be granted on count two of the indictment (see generally People v. Calabria , 94 N.Y.2d 519, 523, 706 N.Y.S.2d 691, 727 N.E.2d 1245 [2000] ). In light of our determination, we do not reach defendant's remaining contentions.