Opinion
17474 Ind. No. 2396/17 Case No. 2020-01383
03-09-2023
The PEOPLE of the State of New York, Respondent, v. Donald LEE, Defendant–Appellant.
Mark Zeno, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Mark Zeno, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Webber, J.P., Kern, Oing, Friedman, Gonza´lez, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered January 27, 2020, convicting defendant, after a jury trial, of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 50 years to life, unanimously affirmed.
The court providently exercised its discretion in denying defendant's motion for a mistrial based on a detective's remark that defendant had requested an attorney. The testimony was brief and inadvertently elicited, and the court's thorough curative instruction, made shortly after the offending testimony, sufficiently mitigated any possible prejudice to defendant (see e.g. People v. Jones, 209 A.D.3d 591, 593, 177 N.Y.S.3d 34 [1st Dept. 2022], lv denied 39 N.Y.3d 986, 181 N.Y.S.3d 198, 201 N.E.3d 815 [2022] ; People v. Owens, 214 A.D.2d 480, 481, 625 N.Y.S.2d 524 [1st Dept. 1995], lv denied 86 N.Y.2d 799, 632 N.Y.S.2d 513, 656 N.E.2d 612 [1995] ). In any event, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The court also providently exercised its discretion in permitting a witness to express an opinion that defendant was the person depicted on surveillance video (see People v. Russell, 79 N.Y.2d 1024, 1025, 584 N.Y.S.2d 428, 594 N.E.2d 922 [1992] ; People v. DeJesus, 192 A.D.3d 561, 143 N.Y.S.3d 356 [1st Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 752, 171 N.E.3d 228 [2021] ). Although defense counsel argued that the witness was insufficiently familiar with defendant, the requisite familiarity was established at a hearing under People v. Rodriguez , 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 (1992). The witness testified that he had seen defendant several times a week in the months leading up to the shooting, he was friends with defendant's brother, and they often socialized. Defendant did not preserve his additional claim that this testimony was unnecessary, and we decline to review it in the interest of justice. As an alternative holding, we find that there was "some basis" to conclude that the witness would be more likely than the jury to correctly identify defendant from the video ( People v. Sanchez, 95 A.D.3d 241, 249, 941 N.Y.S.2d 599 [1st Dept. 2012], affd 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ), and any prejudice to defendant was minimized by the court's repeated instructions reminding the jury that it was its function to determine who was depicted on the video (see People v. Hill, 199 A.D.3d 588, 157 N.Y.S.3d 24 [1st Dept. 2021], lv denied 38 N.Y.3d 928, 164 N.Y.S.3d 29, 184 N.E.3d 850 [2022] ). In any event, any error in this regard was likewise harmless.
The court's denial of defendant's request for a psychiatric examination at sentencing was also a sound exercise of discretion (see People v. Tortorici, 92 N.Y.2d 757, 766, 686 N.Y.S.2d 346, 709 N.E.2d 87 [1999], cert denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 [1999] ; People v. Morgan, 87 N.Y.2d 878, 879–880, 638 N.Y.S.2d 942, 662 N.E.2d 260 [1995] ). Defendant did not have a known history of mental illness, or any competency issues at trial. Despite some strange and disruptive remarks, there was no indication that between trial and sentencing he had lost the capacity to understand the proceedings and assist his attorney (see e.g. People v. McCray, 165 A.D.3d 595, 596, 86 N.Y.S.3d 68 [2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 590, 121 N.E.3d 218 [2019] ).
We perceive no basis for reducing the sentence.