Opinion
2018–15054 Ind. No. 649/17
11-23-2022
The PEOPLE, etc., respondent, v. Adrian PORTER, appellant.
Patricia Pazner, New York, NY (Chelsea F. Lopez of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Theresa Yuan of counsel), for respondent.
Patricia Pazner, New York, NY (Chelsea F. Lopez of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Theresa Yuan of counsel), for respondent.
BETSY BARROS, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered December 5, 2018, convicting him of attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of mandatory surcharges and fees; as so modified, the judgment is affirmed.
The defendant was convicted, after a jury trial, of attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and reckless endangerment in the first degree in connection with a shooting incident in Queens. At trial, two witnesses, including the complainant, identified the defendant as the shooter. The complainant testified that he knew the defendant as "Sonny."
The defendant contends that the Supreme Court should not have permitted the People to introduce into evidence a recording of a telephone call that he made while he was incarcerated at Rikers Island Correctional Facility, in which he identified himself as "Sonny," because the People did not disclose the recording until after defense counsel made his opening statement, in violation of CPL former 240.20(1)(g). However, contrary to the defendant's contention, the court providently exercised its discretion in declining to preclude the recording. CPL former 240.20(1)(g), which was in effect at the time of the defendant's trial, required the People, upon demand, to disclose to the defendant "[a]ny tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction" ( People v. Caussade, 162 A.D.2d 4, 11, 560 N.Y.S.2d 648 ). Here, the record reflects that the People did not intend to introduce the recording into evidence at trial until after defense counsel made his opening statement, during which he argued, among other things, that the police "just assume[d] and speculate[d] that [the defendant] is Sonny." Therefore, the People did not violate their disclosure obligations under CPL former 240.20(1)(g) by failing to turn over the recording prior to trial (see People v. Harleston, 139 A.D.3d 412, 31 N.Y.S.3d 41 ; People v. Farmer, 198 A.D.2d 805, 807, 604 N.Y.S.2d 391 ; see also People v. Muller, 72 A.D.3d 1329, 1335, 899 N.Y.S.2d 425 ; People v. Perry, 70 A.D.3d 1063, 1064, 894 N.Y.S.2d 231 ). Moreover, the recording was properly provided to the defendant after defense counsel made his opening statement (see People v. Farmer, 198 A.D.2d at 807, 604 N.Y.S.2d 391 ), and there was no showing of bad faith on the part of the People which would warrant the extreme sanction of preclusion (see People v. Jenkins, 284 A.D.2d 550, 551, 727 N.Y.S.2d 463, affd 98 N.Y.2d 280, 746 N.Y.S.2d 651, 774 N.E.2d 716 ). Further, the probative value of the recording outweighed any prejudice to the defendant (see People v. Chrisostome, 167 A.D.3d 644, 86 N.Y.S.3d 903 ). The defendant's remaining contentions concerning the recording are without merit. The defendant's contention that the Supreme Court erred in admitting into evidence the recording of a 911 emergency telephone call by the complainant's mother is without merit. The recording of the 911 call was properly admitted into evidence under the excited utterance and present sense impression exceptions to the hearsay rule, as the probative value of this evidence outweighed any prejudicial effect (see People v. Chin, 148 A.D.3d 925, 49 N.Y.S.3d 517 ; People v. Wallace, 79 A.D.3d 1075, 1076, 912 N.Y.S.2d 891 ; People v. Carrenard, 56 A.D.3d 486, 487, 867 N.Y.S.2d 470 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
However, as consented to by the People, we modify the judgment by vacating the surcharges and fees imposed on the defendant at sentencing (see CPL 420.35[2–a] ; People v. Danso, 208 A.D.3d 1363, 174 N.Y.S.3d 602 ; People v. Reid, 207 A.D.3d 664, 170 N.Y.S.3d 474 ; People v. Sevaughn G., 199 A.D.3d 936, 937, 154 N.Y.S.3d 475 ; People v. Dyshawn B., 196 A.D.3d 638, 152 N.Y.S.3d 131 ).
BARROS, J.P., MILLER, DOWLING and WARHIT, JJ., concur.