Opinion
No. 2012-07663 Ind. No. 503/10
01-26-2022
The People, etc., respondent, v. Paul Williams, appellant.
Janet E. Sabel, New York, NY (Paul Wiener of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Roni C. Piplani of counsel), for respondent.
Argued - December 21, 2021
Janet E. Sabel, New York, NY (Paul Wiener of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Roni C. Piplani of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. SYLVIA O. HINDS-RADIX ROBERT J. MILLER LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory Lasak, J.), rendered July 25, 2012, convicting him of murder in the second degree, attempted murder in the second degree, and assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
At the trial, a witness testified that on September 14, 2009, the defendant, who had the nickname Essay, fired multiple gunshots from an assault rifle into a crowd in Far Rockaway. One man was shot in his leg, which was ultimately amputated, and another man, who was repeatedly shot in his torso, died from his injuries on September 21, 2009 (hereinafter the decedent). A police detective testified that while the decedent was in an ambulance at the scene of the shooting, he told the detective that "Essay did it." The People also elicited testimony that on September 15, 2009, while the decedent was in the intensive care unit of the hospital, the decedent made nonverbal statements that implicated the defendant as the shooter. The jury convicted the defendant of murder in the second degree, attempted murder in the second degree, and assault in the first degree.
Dying declarations are admissible in a criminal prosecution "for the death of the declarant," where "the statements concern the circumstances of his [or her] death," and "[are] spoken under a sense of impending death, with no hope of recovery" (People v Nieves, 67 N.Y.2d 125, 132 n 3, 133; see People v Clay, 88 A.D.3d 14, 28). Here, the statement made by the decedent in the ambulance and his nonverbal statements in the hospital were properly admitted into evidence at trial as dying declarations (see People v Nieves, 67 N.Y.2d at 132; People v Parrado, __A.D.3d__, 2021 NY Slip Op 06867 [2d Dept]; People v Colon, 196 A.D.3d 1043; People v Cla S8 A.D.3d 14, 29; People v Liccione, 63 A.D.2d 305, 317-318, affd, 50 N.Y.2d 850; cf. People v Esteves, 152 A.D.2d 406, 412). Further, the statement in the ambulance was also admissible under the excited utterance exception to the hearsay rule (see People v Cotto, 92 N.Y.2d 68, 78-79; People v Prashad, 297 A.D.2d 352; People v Armistead, 178 A.D.2d 607, 608).
Contrary to the defendant's contention, the People established by clear and convincing evidence that on August 22, 2009, the defendant was involved in a dice game at the same location as the charged crimes, which ended in a monetary dispute and an uncharged shooting (see People v Robinson, 68 N.Y.2d 541, 544-545; People v Littlejohn, 112 A.D.3d 67, 75). This evidence was probative as to the defendant's motive and intent in the commission of the charged crimes, as well as his identity as the shooter in the charged crimes (see People v Beam, 57 N.Y.2d 241, 252; People v Allweiss, 48 N.Y.2d 40, 47; People v Hernandez, 186 A.D.3d 1246, 1247; People v Laverpool, 52 A.D.3d 622, 622). Moreover, inasmuch as the probative value of the evidence outweighed the risk of unfair prejudice to the defendant (see People v Till, 87 N.Y.2d 835, 836; People v Carrasquillo, 10 A.D.3d 424), the Supreme Court's Molineux ruling was not an improvident exercise of discretion (see People v Molineux, 168 NY 264). In addition, the court's instructions to the jury on the proper use of that evidence alleviated any potential for prejudice resulting from its admission (see People v Hernandez, 186 A.D.3d at 1247; People v Barnes, 160 A.D.3d 890, 891).
The defendant's contention that his right to a fair trial was violated by certain remarks made by the prosecutor during her opening statement and on summation is unpreserved for appellate review, since the defendant failed to object to the remarks at issue and failed to make a timely motion for a mistrial or otherwise object on the specific grounds he now asserts on appeal (see CPL 470.05[2]; People v Romero, 7 N.Y.3d 911, 912; People v Rodriguez, 199 A.D.3d 838, 840; People v Willis, 165 A.D.3d 984, 985). In any event, the prosecutor's opening statement adequately described what the People intended to prove and properly prepared the jury to resolve the factual issues at the trial (see People v Larios, 25 A.D.3d 569, 570; People v Etoria, 266 A.D.2d 559). Further, most of the challenged summation remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to defense counsel's summation, or permissible rhetorical comment (see People v Rodriguez, 175 A.D.3d 721, 722; People v Carter, 152 A.D.3d 786). To the extent that some of the challenged remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial (see People v Reeves, 180 A.D.3d 936, 938).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
CONNOLLY, JP, HINDS-RADIX, MILLER and GENOVESI, JJ, concur