Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. Edwin L. MULLIGAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Edwin L. Mulligan, Defendant–Appellant pro se.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Edwin L. Mulligan, Defendant–Appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), For Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b], [3] ). During the trial, County Court admitted in evidence a 911 recording containing several statements that were made approximately two minutes after the shooting that resulted in the charges herein. During the recording, a witness stated that he had found the victim after she had been shot, and that the victim was conscious but did not know where she had been shot. The 911 operator asked the witness who had shot the victim, and the witness initially responded, “I guess her boyfriend.” The witness then asked the victim to identify the shooter, the victim responded by identifying defendant, and the witness repeated that response to the 911 operator.
We reject defendant's contention that the court erred in admitting in evidence the victim's statements on the 911 recording under the excited utterance exception to the hearsay rule. In determining whether to admit such statements in evidence, “it is necessary to review the facts of the case to consider the atmosphere surrounding the statements and thus determine whether they were precipitated by the subject event” ( People v. Norton, 164 A.D.2d 343, 353, 563 N.Y.S.2d 802,affd.79 N.Y.2d 808, 580 N.Y.S.2d 174, 588 N.E.2d 72). The fact “[t]hat statements were made in response to an inquiry does not disqualify them as excited utterances but rather is a fact to be considered by the trial court” ( People v. Cotto, 92 N.Y.2d 68, 79, 677 N.Y.S.2d 35, 699 N.E.2d 394). Here, the evidence in the record establishes that the victim was shot four times in front of her 14–month–old toddler, and the statements at issue were made within minutes of that incident. Moreover, during the medical treatment administered at the scene shortly after the 911 call, the victim “was crying out that she didn't want to die.” We agree with the People that such evidence establishes that the victim “ ‘spoke while under the stress or influence of the excitement caused by the event, so that [her] reflective capacity was stilled’ ... The spontaneity of the declaration guarantee[d] its trustworthiness and reliability” ( People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257).
We agree with defendant, however, that the court erred in admitting in evidence the statement of the witness identifying defendant as the shooter under the present sense impression exception to the hearsay rule. It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward ..., and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” ( id. at 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257). Here, the witness did not see the shooting, and he confirmed defendant's identity as the shooter only after questioning the victim ( see People v. Vasquez, 88 N.Y.2d 561, 580, 647 N.Y.S.2d 697, 670 N.E.2d 1328;see also People v. Brown, 104 A.D.3d 1203, 1204, 960 N.Y.S.2d 588,lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392). Therefore, the witness's statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim's identification of defendant as the shooter ( see People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753,lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114,reconsideration denied20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624;see generally People v. Smith, 22 N.Y.3d 462, 465–467, 982 N.Y.S.2d 809). We conclude, however, that the court's error “is harmless because the ‘proof of [defendant's] guilt was overwhelming ... and ... there was no significant probability that the jury would have acquitted [him] had the proscribed evidence not been introduced’ ” ( Spencer, 96 A.D.3d at 1553, 946 N.Y.S.2d 753, quoting People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Defendant's further contention that the court erred in admitting in evidence the testimony of a police officer that bolstered the victim's identification of defendant lacks merit inasmuch as that testimony provided a narrative of the events leading to defendant's arrest ( see e.g. People v. Perry, 62 A.D.3d 1260, 1261, 877 N.Y.S.2d 726,lv. denied12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081;People v. Mendoza, 35 A.D.3d 507, 507, 826 N.Y.S.2d 146,lv. denied8 N.Y.3d 987, 838 N.Y.S.2d 491, 869 N.E.2d 667;People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630,lv. denied98 N.Y.2d 681, 746 N.Y.S.2d 471, 774 N.E.2d 236). In any event, any such error is harmless ( see generally Crimmins, 36 N.Y.2d at 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787), particularly in view “of the ‘clear and strong’ identification of defendant by the victim and the other evidence of defendant's guilt” ( People v. Simms, 244 A.D.2d 920, 920–921, 665 N.Y.S.2d 185,lv. denied91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038;see People v. McCullen, 63 A.D.3d 1708, 1709, 881 N.Y.S.2d 577,lv. denied13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019;People v. Cunningham, 233 A.D.2d 845, 846, 649 N.Y.S.2d 629,lv. denied89 N.Y.2d 1091, 660 N.Y.S.2d 384, 682 N.E.2d 985).
Defendant's contention that he was denied a fair trial by prosecutorial misconduct because the prosecutor attempted to mislead the jury on the issue whether the victim was wearing a winter coat when she was shot is not preserved for our review ( see People v. Golson, 93 A.D.3d 1218, 1219–1220, 940 N.Y.S.2d 423,lv. denied19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435;see generally People v. Rogers, 103 A.D.3d 1150, 1154, 958 N.Y.S.2d 835,lv. denied21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142) and, in any event, that contention lacks merit. Although a “ ‘prosecutor has a duty to correct trial testimony if he or she knows that it is false’ ” ( People v. McDuffie, 77 A.D.3d 1360, 1361, 907 N.Y.S.2d 764,lv. denied16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185;see People v. Savvides, 1 N.Y.2d 554, 556–557, 154 N.Y.S.2d 885, 136 N.E.2d 853), the record does not establish that the prosecutor elicited false testimony or misled the jury ( see generally People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818,lv. denied20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330).
Defendant contends that the prosecutor also engaged in misconduct by cross-examining him regarding his failure to contact the police after the shooting, thereby infringing upon his right to remain silent, and then engaged in further misconduct by commenting on that failure during summation. Those contentions are preserved for our review only to the extent that defendant objected to parts of the prosecutor's summation. In any event, contrary to defendant's contention regardingcross-examination, “[t]he People's primary focus was on defendant's conduct, to wit, his flight and his failure to seek aid for the victim [and their child], rather than [defendant's] silence ... Moreover, defendant's failure to contact the police was admissible as inconsistent with his defense” ( People v. Guzman, 259 A.D.2d 364, 365, 688 N.Y.S.2d 10,lv. denied93 N.Y.2d 925, 693 N.Y.S.2d 508, 715 N.E.2d 511;see generally People v. Rothschild, 35 N.Y.2d 355, 360–361, 361 N.Y.S.2d 901, 320 N.E.2d 639). We further conclude that the disputed parts of the People's summation were fair comment upon the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564). We reject defendant's related contention that he was denied meaningful representation based on defense counsel's failure to preserve for our review the issue of prosecutorial misconduct in its entirety. An attorney's “failure to ‘make a motion or argument that has little or no chance of success' ” does not amount to ineffective assistance ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883). For the reasons discussed above, the prosecutor's cross-examination of defendant on the subject of his failure to contact police was proper and thus any argument to the contrary had “little or no chance of success” ( id.). We further conclude that defendant was not deprived of a fair trial by the cumulative effect of the errors alleged herein ( see People v. Snyder, 100 A.D.3d 1367, 1370, 953 N.Y.S.2d 430,lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285;People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224,lv. denied11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447).
Defendant further contends in his main and pro se supplemental briefs that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence, basing both contentions primarily on his challenge to the victim's credibility. We reject those contentions. The victim “did not provide internally inconsistent testimony, and she was not the source of all of the evidence of [defendant's] guilt” ( People v. Hampton, 21 N.Y.3d 277, 288, 970 N.Y.S.2d 716, 992 N.E.2d 1059 [internal quotation marks omitted] ). Viewing the evidence in the light most favorable to the People ( see People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367), we conclude that it is legally sufficient to support the conviction of the crimes charged ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we also conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[R]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury” ( People v. Witherspoon, 66 A.D.3d 1456, 1457, 885 N.Y.S.2d 829,lv. denied13 N.Y.3d 942, 895 N.Y.S.2d 333, 922 N.E.2d 922 [internal quotation marks omitted] ), and we see no basis for disturbing the jury's resolution of those issues.
Defendant further contends that the court erred in failing to issue a decision on those parts of his omnibus motion seeking suppression of evidence found by the police during searches of his house and vehicle pursuant to a search warrant. In his motion, defendant contended that his constitutional rights were violated by the searches because the court lacked probablecause to issue the warrant. On the initial date that the court set for argument of the motions, the court indicated that it would review the search warrant application and the search warrants. At the start of the trial, defense counsel argued other motions and obtained rulings on other applications such as his Sandoval request, but he did not seek to argue the suppression motion. In addition, defense counsel did not respond when the court inquired whether there were “any other issues we may need to talk about before we bring the jury up,” nor did he object when the evidence seized as a result of those searches was admitted in evidence at trial. “Because defendant failed to seek a ruling on those parts of his omnibus motion concerning the alleged [constitutional] violation ... or to object to the admission of [that] evidence at trial, we conclude that defendant abandoned his contention[ ] that [the court] erred in refusing to suppress [the evidence] on those grounds” ( People v. Nix, 78 A.D.3d 1698, 1699, 912 N.Y.S.2d 832,lv. denied16 N.Y.3d 799, 919 N.Y.S.2d 515, 944 N.E.2d 1155,cert. denied––– U.S. ––––, 132 S.Ct. 157, 181 L.Ed.2d 72;see People v. Anderson, 52 A.D.3d 1320, 1320–1321, 859 N.Y.S.2d 852,lv. denied11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656).
We have considered defendant's remaining contentions in both his main and pro se supplemental briefs, and we conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.