Opinion
2012-12-5
The PEOPLE, etc., respondent, v. Rahman WILSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and Lisa Napoli of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Marie–Claude P. Wrenn–Myers of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley and Lisa Napoli of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, and Marie–Claude P. Wrenn–Myers of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
Appeal by the defendant from a judgment of Supreme Court, Kings County (Guzman, J.), rendered September 3, 2010, convicting him of murder in the second degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of imprisonment of 25 years to life on the convictions of murder in the second degree, and to a concurrent determinate term of imprisonment of 15 years, followed by a term of 5 years of postrelease supervision, on the conviction of criminal possession of a weapon in the second degree.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed upon the defendant's convictions of murder in the second degree to consecutiveindeterminate terms of imprisonment of 20 years to life; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was not legally sufficient to support the convictions of murder in the second degree is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution, we find that those convictions were supported by legally sufficient evidence ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932). Further, upon our independent review of the evidence, we are satisfied that the verdict of guilt on those charges was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant failed to preserve for appellate review his present contention that the prosecutor improperly elicited hearsay testimony from an eyewitness, namely, that while at the time of the murder, the eyewitness thought the coworker whom he had identified as the shooter was named “Ramel,” he learned later from his girlfriend, who also worked with the defendant, that the coworker's name was “Rahman,” which is the defendant's first name ( seeCPL 470.05[2] ). However, reaching the issue in the exercise of our interest of justice jurisdiction, we conclude that it was error to admit such testimony. Contrary to the People's contention, this testimony was not properly admitted to “complete the narrative” of how the eyewitness came to know “Ramel's” true name. This is not a case, for example, in which a police witness testifies to information he learned from a nontestifying witness, not for the truth of the information, but to explain the police conduct ( see e.g. People v. Tucker, 54 A.D.3d 1065, 866 N.Y.S.2d 209;People v. Monroe, 216 A.D.2d 494, 628 N.Y.S.2d 398). Rather, here, the testimony was offered for its truth, i.e., to prove that the person the eyewitness saw shoot the victim was, in fact, Rahman. Accordingly, the testimony was improperly admitted, as it was inadmissible hearsay ( see generally People v. Kass, 59 A.D.3d 77, 86, 874 N.Y.S.2d 475). Nevertheless, the error was harmless, since the evidence of the defendant's guilt was overwhelming and there is no significant probability that the error contributed to his conviction ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Furthermore, contrary to the defendant's contention, the error in admitting the hearsay evidence did not violate his right to confront witnesses because the testimony elicited by the People during direct examination did not imply that the eyewitness's girlfriend viewed the shooting and identified the defendant as the shooter, but, rather, indicated that the girlfriend merely supplied the correct name of the subject coworker ( cf. People v. Berry, 49 A.D.3d 888, 854 N.Y.S.2d 507;People v. Johnson, 7 A.D.3d 732, 733, 777 N.Y.S.2d 190).
The defendant's contention that the prosecutor improperly questioned a defense witness as to whether he had testified before the grand jury is unpreserved for appellate review. In any event, while the contention has merit ( see People v. Dawson, 50 N.Y.2d 311, 323 n. 5, 428 N.Y.S.2d 914, 406 N.E.2d 771;People v. Cippola, 96 A.D.2d 1102, 467 N.Y.S.2d 72;see also CPL 190.50[1] ), the error was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).
The defendant was afforded the effective assistance of trial counsel ( see People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Under the circumstances of this case, the imposition of a term of imprisonment of 25 years to life for each of the defendant's convictions of murder in the second degree was excessive to the extent indicated herein.
The defendant's remaining contention is without merit.