Opinion
6736 6737 Ind. 2257/12 2312/12
05-31-2018
The PEOPLE of the State of New York, Respondent, v. Elvis MCKENZIE, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Daniel R. Lambright of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Daniel R. Lambright of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Sweeny, J.P., Richter, Andrias, Kahn, Moulton, JJ.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered January 20, 2015, as amended March 31, 2015, convicting defendant, after a jury trial, of assault in the first degree, robbery in the first degree (two counts), robbery in the second degree and attempted robbery in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 15 years, unanimously affirmed.
We reject defendant's challenge to the sufficiency of the evidence supporting the serious physical injury element of the convictions relating to a robbery victim who was stabbed. The evidence, including expert medical testimony, established serious physical injury under the theory of creating a substantial risk of death ( Penal Law § 10.00[10] ). The attending physician testified that the three-inch cut behind the victim's ear, even though not deep, posed a substantial risk of death because of its very close proximity to the victim's carotid artery and jugular vein (see People v. Jones, 38 A.D.3d 352, 832 N.Y.S.2d 180 [1st Dept. 2007], lv denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ).
The court providently exercised its discretion in permitting the People to impeach one of the victims with his grand jury testimony that he had previously identified defendant at a lineup (see CPL 60.35[1] ; People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 385 N.E.2d 572 [1978] ). The victim testified at trial that he had seen the tall, slim robber who attacked him a thousand times in the neighborhood, but did not see his attacker in court, and he specifically testified that this was not due to his inability to recall defendant's appearance, but because he did not see "anybody [he] recognize[d]." This testimony, viewed in the context of his "flippant attitude" throughout his direct testimony, as noted by the court, and his apparent efforts to undermine the People's case, caused the kind of affirmative damage that permits impeachment of one's own witness (see People v. De Jesus, 101 A.D.2d 111, 113–14, 475 N.Y.S.2d 19 [1st Dept. 1984], affd 64 N.Y.2d 1126, 490 N.Y.S.2d 188, 479 N.E.2d 824 [1985] ; see also People v. Bynum, 275 A.D.2d 251, 712 N.Y.S.2d 523 [1st Dept. 2000], lv denied 95 N.Y.2d 961, 722 N.Y.S.2d 478, 745 N.E.2d 399 [2000] ).
The court also providently exercised its discretion in permitting the People to introduce two recorded phone calls defendant made while in custody awaiting trial. Neither call could be interpreted as referring to any uncharged bad acts, and any ambiguity as to whether they constituted admissions to the charged crimes went to the weight to be given the recordings, not their admissibility ( People v. Moore, 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 [2d Dept. 2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; People v. Frias, 250 A.D.2d 495, 496, 673 N.Y.S.2d 416 [1st Dept. 1998], lv denied 92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751 [1998] ). To the extent defendant is claiming that the calls contained hearsay, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
In any event, any error either in permitting the impeachment of the prosecution's own witness or in receiving the recorded calls was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).