Opinion
No. 2012–438 K CR.
09-17-2015
The PEOPLE of the State of New York, Respondent, v. Jeffrey SMITH, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Gilbert C. Hong, J.), rendered January 23, 2012. The judgment convicted defendant, after a nonjury trial, of attempted criminal possession of a weapon in the fourth degree, menacing in the third degree, and harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
The People charged defendant in a single accusatory instrument with attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.012 ), menacing in the third degree (Penal Law § 120.15), and harassment in the second degree (Penal Law § 240.261 ).
At a nonjury trial, a livery cab driver testified that, following his livery cab's near-collision with defendant's automobile, defendant had cursed at him and moved his own vehicle in front of the livery cab to prevent the driver's departure. Defendant then exited his vehicle, approached the livery cab driver, and swung a “club,” a metal automobile anti-theft device, at the driver, barely missing him, as a part of the club separated from the main portion and landed inside the livery cab. This separated portion was later recovered by the arresting officer and admitted into evidence. Defendant testified that the initial aggressor had been the livery cab driver who, after the incident, had exited from his livery cab brandishing a large kitchen knife, and that other livery cab drivers, apparently responding to the livery cab driver's radio summons for help, had quickly gathered at the scene, forcing defendant to wield the club in self defense. Defendant also testified that he had retreated from the confrontation, called 911, and informed the 911 operator that he had been threatened with a weapon and required police assistance to protect him from “the mob.” In support of this claim, defendant offered as an exhibit a recording of his 911 call which, after an in camera review, the court admitted, but only as to the initial 20 seconds, which included defendant's statements regarding his need for police assistance and the 911 operator's attempts to clarify defendant's identity and location. The remainder of the call included defendant's allegation that he had been threatened with a knife, a description of the other livery cab drivers, the clothing of the other driver, and the license plate number of the livery cab.
At the conclusion of the trial, the court granted defendant's request that it adopt a justification charge (see Penal Law § 35 .151, 2[a] ). Following the trial, the Criminal Court convicted defendant of all three charges.
On appeal, defendant argues that the entire 911 recording should have been admitted, pursuant to the excited utterance or present sense impression exceptions to the hearsay rule, to support his justification defense; that the evidence was legally insufficient to rebut that defense; and that, in any event, the convictions were against the weight of the evidence.
As defendant failed to argue at trial that his 911 call was admissible pursuant to the excited utterance or present sense impression exceptions to the hearsay rule, these claims are not preserved for appellate review (see CPL 470.052; e.g. People v. Figueroa, 37 AD3d 246, 246 2007 ). In any event, upon a review of the recording of the 911 call and the circumstances in which it was made, we agree that the redacted portion of the recording was inadmissible pursuant to either exception (People v. Cantave, 21 NY3d 374 2013; People v. Vasquez, 88 N.Y.2d 561 1996; People v. Edwards, 47 N.Y.2d 493 1979 ). We need not pass on the People's contention that the court erred in adopting the justification defense with respect to the charge of attempted possession of a weapon in the third degree (cf. People v. Pons, 68 N.Y.2d 264 1986; People v. Richardson, 115 AD3d 617 2014; People v. Pitt, 84 AD3d 1275 2011 ), as the People did not object thereto at trial, and thus, the argument represents an unpreserved, alternate ground for affirmance, which we may not consider (CPL 470.151; People v. LaFontaine, 92 N.Y.2d 470 1998; see also People v. Concepcion, 17 NY3d 192 2011; People v. Karp, 76 N.Y.2d 1006 1990 ).
We are satisfied that the evidence was legally sufficient to disprove the justification defense beyond a reasonable doubt (Matter of Y.K., 87 N.Y.2d 430 1996 ). Upon the exercise of our authority to determine whether a judgment of conviction is supported by the weight of the evidence (see CPL 470.155; People v. Danielson, 9 NY3d 342 2007 ), we find that the record supports the conclusion that the trier of fact accorded the proper weight to the evidence (see% People v. Romero, 7 NY3d 633 2006 ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., WESTON and SOLOMON, JJ., concur.