Opinion
2015-06-17
The PEOPLE, etc., respondent, v. Frank R. STEVENSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murphy, J.), rendered May 28, 2013, convicting him of rape in the first degree, sexual abuse in the first degree (two counts), and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly admitted into evidence a recording of a telephone call that was made by the defendant from Rikers Island three days after his arrest. “Even equivocal consciousness-of-guilt evidence may be admissible so long as it is relevant, meaning that it has a tendency to establish the fact sought to be proved—that [the] defendant was aware of guilt” ( People v. Bennett, 79 N.Y.2d 464, 470, 583 N.Y.S.2d 825, 593 N.E.2d 279; see People v. Braithwaite, 126 A.D.3d 993, 995–996, 6 N.Y.S.3d 128). Here, the recording of the telephone call was admissible as evidence of consciousness of guilt, and its probative value outweighed any potential for prejudice ( see People v. Livrieri, 125 A.D.3d 579, 6 N.Y.S.3d 5; People v. Case, 113 A.D.3d 872, 873, 979 N.Y.S.2d 383; People v. Marcus, 101 A.D.3d 1046, 1048, 956 N.Y.S.2d 167; People v. Cruz, 41 A.D.3d 893, 837 N.Y.S.2d 767).
We agree with the defendant that the Supreme Court erred in granting the People's request to charge the jury, over the defendant's objection, regarding intoxication, as there was insufficient evidence of intoxication in the record ( cf. People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535; People v. Blouin, 223 A.D.2d 650, 637 N.Y.S.2d 20). Nevertheless, this error was harmless, as there was overwhelming evidence of the defendant's guilt and there is no significant probability that the error contributed to his convictions ( see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787; see also People v. Fowle, 60 A.D.3d 691, 691, 873 N.Y.S.2d 500; People v. Martinez, 18 A.D.3d 343, 344, 795 N.Y.S.2d 230).
The defendant contends that the trial court erred by permitting the People to introduce into evidence a photograph depicting the victim, that the prosecutor improperly displayed slides, including that photograph, with accompanying text as part of a PowerPoint presentation during summation, and that the prosecutor made certain improper remarks during summation. These contentions are unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, contrary to the defendant's contention, these alleged errors were not, either individually or collectively, so egregious as to deprive the defendant of a fair trial.
Moreover, contrary to the defendant's contention, defense counsel's failure to object to the challenged summation remarks did not constitute ineffective assistance of counsel ( see People v. McGowan, 111 A.D.3d 850, 851, 975 N.Y.S.2d 147; People v. Brown, 106 A.D.3d 754, 755, 963 N.Y.S.2d 409; People v. Torres, 72 A.D.3d 709, 709, 900 N.Y.S.2d 89). The record reveals that defense counsel provided meaningful representation ( see People v. Taylor, 1 N.Y.3d 174, 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Williams, 123 A.D.3d 1152, 1154, 997 N.Y.S.2d 499).
Contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations does not, standing alone, establish that he was punished for asserting his right to proceed to trial ( see People v. Murray, 116 A.D.3d 1068, 1069, 984 N.Y.S.2d 417; People v. Fernandez, 115 A.D.3d 977, 979, 982 N.Y.S.2d 174). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).