Opinion
2014-04-10
The PEOPLE of the State of New York, Respondent, v. Edwin MENDEZ, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Fitzpatrick, Cella, Harper & Scinto, New York (C. Austin Ginnings of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Fitzpatrick, Cella, Harper & Scinto, New York (C. Austin Ginnings of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, GISCHE, CLARK, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered January 10, 2012, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
Although the record is silent regarding the court's responses to three jury notes requesting materials not in evidence, reversal is not required. None of these notes were substantive inquiries that required compliance with the procedures mandated by CPL 310.30 ( see People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ). Instead, these notes only necessitated the ministerial actions of informing the jury that none of the items they requested were in evidence ( see People v. Ziegler, 78 A.D.3d 545, 911 N.Y.S.2d 331 [1st Dept.2010], lv. denied16 N.Y.3d 838, 921 N.Y.S.2d 203, 946 N.E.2d 191 [2011] ). Furthermore, defendant's claims are unreviewable for lack of a sufficient record ( see People v. Kinchen, 60 N.Y.2d 772, 773–774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ). “[A] presumption of regularity attaches to judicial proceedings and may be overcome only by substantial evidence” ( see People v. Johnson, 46 A.D.3d 415, 417, 848 N.Y.S.2d 103 [1st Dept.2007], lv. denied10 N.Y.3d 812, 857 N.Y.S.2d 46, 886 N.E.2d 811 [2008] ). Accordingly, there was no mode of proceedings error ( see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995] ).
Under the circumstances of the case, defendant received a sufficient opportunity to demonstrate, in connection with his justification defense, his knowledge of prior violent acts by his opponents in the altercation at issue, and the court's limitations on such evidence were reasonable exercises of discretion ( see People v. Miller, 39 N.Y.2d 543, 552–553, 384 N.Y.S.2d 741, 349 N.E.2d 841 [1976] ). In the context of the particular justification defense actually presented by defendant, the prior violent acts had very little probative value ( see id.). To the extent any of the court's restrictions could be viewed as erroneous, we find them to be harmless ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787, 326 N.E.2d 787 [1975] ). Defendant did not preserve his claims that certain prior acts of prosecution witnesses were admissible to impeach their credibility, or that any of the court's evidentiary rulings impaired his constitutional right to present a defense ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006];see also People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ), and we decline to review these claims in the interest of justice. As an alternative holding, we reject them on the merits ( see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).