Opinion
04-05-2017
The PEOPLE, etc., respondent, v. Luis JACK, also known as Ernest Webb, appellant.
Lynn W.L. Fahey, New York, NY (Denise A. Corsi of counsel), for appellant, and appellant pro se. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Denise A. Corsi of counsel), for appellant, and appellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered November 8, 2012, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court deprived him of a fair trial and his right to put on a defense when it redacted portions of a recording of a telephone call is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the defendant's contention is without merit. A defendant's right to present a defense is not absolute (see People v. Hayes, 17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118 ; People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730 ), and the trial court has wide latitude to exclude evidence that is repetitive, is only marginally relevant, or poses an undue risk of confusion of the issues (see People v. Bowen, 67 A.D.3d 1022, 1023, 889 N.Y.S.2d 645 ; People v. Celifie, 287 A.D.2d 465, 730 N.Y.S.2d 884 ; People v. Cancel, 176 A.D.2d 748, 749, 575 N.Y.S.2d 92 ). Here, the Supreme Court properly admitted into evidence certain portions of a recording of a telephone call made by the defendant while he was at Rikers Island prior to trial. During the call, the defendant stated, "The [surveillance] video has my clothes in it.... But it don't show my face." This part of the call was properly admitted as an admission (see People v. Chico, 90 N.Y.2d 585, 589, 665 N.Y.S.2d 5, 687 N.E.2d 1288 ; see also People v. Grant, 17 N.Y.3d 613, 622, 935 N.Y.S.2d 542, 959 N.E.2d 479 ; People v. O'Connor, 21 A.D.3d 1364, 1366, 802 N.Y.S.2d 810 ). Furthermore, contrary to the defendant's contention, the Supreme Court did not err in excluding a portion of the recording in which the defendant surmised what a police officer would testify to and why that testimony would be a lie, because that portion of the recording did not modify or destroy the effect of the admission in the admitted portion of the recording (cf. People v. Dlugash, 41 N.Y.2d 725, 736, 395 N.Y.S.2d 419, 363 N.E.2d 1155 ; People v. Gallo, 12 N.Y.2d 12–15, 234 N.Y.S.2d 193, 186 N.E.2d 399 ; People v. Pitt, 84 A.D.3d 1275, 1276–1277, 924 N.Y.S.2d 121 ; People v. Rodriguez, 188 A.D.2d 566, 567, 591 N.Y.S.2d 463 ).
The defendant's contention that he was deprived of the effective assistance of counsel is without merit, as defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions, raised in his pro se supplemental brief, that certain comments made by the prosecutor in his opening and closing statements deprived him of a fair trial, are without merit.