Opinion
INDICTMENT NO. 2405/2011
05-27-2014
THE PEOPLE OF THE STATE OF NEW YORK v. SHAMAR VIERA, Defendant.
DECISION and ORDER
DATED: MAY 19, 2014
The defendant, Shamar Viera, was convicted following a jury trial of attempted murder in the first degree, conspiracy in the second degree, intimidating a victim or witness in the first degree (two counts) and criminal possession of a weapon in the second degree. Before sentence, the defendant filed a motion pursuant to CPL §330.30 to set aside the verdict, alleging that the court had erred 1) in admitting an audio taped telephone conversation of co-defendant Roger Freeman made on January 23, 2011 due to the defendant's inability to cross-examine the person the co-defendant was speaking to and because it was improperly used to establish an element of conspiracy and was unduly prejudicial; and 2) by denying a motion to sever the trials in light of the potential for prejudice during inconsistent defenses.
Criminal Procedure Law Section 330.30(1) provides that a court may set aside a verdict upon "[a]ny ground appearing in the record which, if raised on appeal from a prospective judgment of conviction, would require a reversal . . . of the judgment as a matter of law by an appellate court." In order for a court to set aside the verdict upon an alleged error committed at trial, the error must have been preserved for review by alerting the court to the issue at trial and by raising during trial the identical legal ground asserted in the motion to set aside the verdict. See People v. Lawrence, 85 NY2d 1002 (1995); People v. Padro, 75 NY2d 820 (1990); People v. Carter, 63 NY2d 530 (1984); People v. Josey, 204 AD2d 571 (2d Dept. 1994); People v. Silas, 308 AD2d 465 (2d Dept. 2003); People v. Patino, 259 AD2d 502 (2d Dept. 1999). Trial courts have no authority to consider unpreserved issues on a motion to set aside the verdict (Id.), unless the issue constitutes a violation of a fundamental right. See People v. Antommarchi, 80 NY2d 247, 250 (1992). Moreover, even if an error is fully preserved, it does not require reversal as a matter of law when the error is harmless in light of the overwhelming evidence of guilt. See People v. Levy, 194 AD2d 319 (1 Dept. 1993); People v. D'Alessandro, 184 AD2d 114 (1 Dept. 1992).
During trial, the court permitted the People to introduce several recorded telephone calls that co-defendant Freeman made from Rikers Island after his arrest on an unrelated matter in which he discussed this case and reached out to several persons to attempt to ensure that neither his then-girlfriend, her mother, or her family would tell the police that they knew him. The court gave limiting instructions when the conversations were played for the jury that the statements were admissible only against co-defendant Roger Freeman and only on the issues of his consciousness of guilt and possible admissions. The court specifically instructed that the tapes were not admitted against either defendant Shamar Viera or co-defendant Terell Viera and could not be used for any purpose as against them. In addition, the court instructed that the jury had to consider the evidence against each of the defendant's separately and could only consider the admissible evidence against each defendant.
In the January 23, 1011 telephone call to his girlfriend, Tasha Ham, co-defendant Roger Freeman asked her "Where's D-mar?" and she responded "He got lo." Defendant Shamar Viera then objected on confrontation grounds that he had no opportunity to cross-examine Tasha Ham. The court informed counsel that the conversation was not being admitted against defendant Shamar Viera and that Ham's statements were not offered for their truth but only for their affect on co-defendant Freeman. Defendant Shamar Viera then informed the court that the instruction was fine and that he just wanted to make sure that his objection was clear for the Appellate Division. The limiting instruction was given and no mistrial motion was made. Under these circumstances, the defendant has not preserved his present claim for appellate review and it is, in any event, meritless.
Next, defendant argues that the ad