Opinion
2016–10027 Ind.No. 2436/15
01-29-2020
The PEOPLE, etc., Respondent, v. Davontay GRACE, Appellant.
Paul Skip Laisure, New York, N.Y. (Grace DiLaura of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Grace DiLaura of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court erred in admitting into evidence the recording of three anonymous 911 calls under the present sense impression exception to the hearsay rule because the element of contemporaneity was not satisfied. The contention is unpreserved for appellate review, since the defendant did not object to the admission of the recording on that ground (see People v. Lee , 151 A.D.3d 982, 983, 59 N.Y.S.3d 35 ; People v. Speaks , 124 A.D.3d 689, 691, 1 N.Y.S.3d 257, affd 28 N.Y.3d 990, 42 N.Y.S.3d 644, 65 N.E.3d 673 ; People v. Walker , 70 A.D.3d 870, 871, 894 N.Y.S.2d 156 ). In any event, the defendant's contention is without merit, as the time delay between the occurrence of events and the calls was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests (see People v. Vasquez , 88 N.Y.2d 561, 573–576, 647 N.Y.S.2d 697, 670 N.E.2d 1328 ; People v. Hernandez , 92 A.D.3d 802, 803, 938 N.Y.S.2d 605 ; People v. Osbourne , 69 A.D.3d 764, 764, 894 N.Y.S.2d 61 ; People v. York , 304 A.D.2d 681, 681, 757 N.Y.S.2d 495 ; cf. People v. Parchment , 92 A.D.3d 699, 699, 938 N.Y.S.2d 174 ).
The defendant failed to preserve for appellate review his contention that a police detective's testimony regarding statements of nontestifying witnesses and the complainant's identification constituted improper bolstering and violated his right to confrontation (see People v. Hall , 168 A.D.3d 761, 762, 90 N.Y.S.3d 310 ; People v. Barnett , 163 A.D.3d 700, 703, 80 N.Y.S.3d 461 ). In any event, the testimony elicited from the police detective during his direct examination was properly admitted to complete the narrative and explain the sequence of events leading to the defendant's arrest (see People v. Terry , 122 A.D.3d 882, 883, 996 N.Y.S.2d 362 ; People v. Dorcinvil , 122 A.D.3d 874, 876, 996 N.Y.S.2d 661 ). Additionally, the prosecutor was entitled to further explore the statements of nontestifying witnesses during his redirect examination for the purpose of explaining and clarifying testimony elicited on cross-examination (see People v. Reid , 19 N.Y.3d 382, 388, 948 N.Y.S.2d 223, 971 N.E.2d 353 ; People v. Massie , 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ; People v. Lowe , 166 A.D.3d 901, 903, 88 N.Y.S.3d 214 ; People v. Melendez , 51 A.D.3d 1040, 1040–1041, 861 N.Y.S.2d 64 ).
The defendant's contentions regarding alleged prosecutorial misconduct during summation are partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Escamilla , 168 A.D.3d 758, 759, 91 N.Y.S.3d 197 ; People v. Fletcher , 130 A.D.3d 1063, 1065, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111 ). In any event, the challenged remarks were either fair comment on the evidence and the inferences to be drawn therefrom (see People v. Gurdon , 153 A.D.3d 1430, 1431, 61 N.Y.S.3d 333 ; People v. Elder , 152 A.D.3d 787, 789, 59 N.Y.S.3d 134 ; People v. Hawley , 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ), cured by the Supreme Court's charge and instructions to the jury, to which the defendant did not object (see People v. Bynum , 171 A.D.3d 1204, 1205, 98 N.Y.S.3d 641 ; People v. Escamilla , 168 A.D.3d at 759–760, 91 N.Y.S.3d 197 ), or not so egregious as to have deprived the defendant of a fair trial (see People v. Freire , 168 A.D.3d 973, 976, 92 N.Y.S.3d 115 ; People v. Mason , 132 A.D.3d 777, 778, 17 N.Y.S.3d 768 ).
The defendant's contention that he received ineffective assistance of counsel based upon defense counsel's failure to preserve for appellate review his current contentions regarding evidentiary errors and the prosecutor's conduct during summation is without merit (see People v. Wragg , 26 N.Y.3d 403, 411, 23 N.Y.S.3d 600, 44 N.E.3d 898 ; People v. Rogers , 161 A.D.3d 1013, 1015, 77 N.Y.S.3d 431 ; People v. Manigat , 136 A.D.3d 614, 616, 24 N.Y.S.3d 397 ; People v. Hawley , 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ). The record reveals that defense counsel provided meaningful representation (see People v. Benevento , 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Alphonso , 144 A.D.3d 1168, 1169, 43 N.Y.S.3d 83 ).
The sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
MASTRO, J.P., DILLON, BRATHWAITE NELSON and IANNACCI, JJ., concur.