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131 A.D.3d 1270

People v. Smith

Appellate Division of the Supreme Court of the State of New York · decided 2015-09-30

Decided 2015-09-30

¶1Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered March 8, 2012, convicting him of attempted murder in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

¶2Ordered that the judgment is affirmed.

¶3The defendant was charged with, inter alia, assault in the third degree and attempted murder in the second degree relating to two altercations with the complainant. The first occurred on July 27, 2010, and the second, an incident during which the defendant repeatedly fired a gun at the complainant, hitting the complainant and his motorcycle, occurred several days thereafter. Both incidents occurred in front of an apartment building in Brooklyn where the defendant resided on the first floor with the mother of his children, Tameka Daniels, and their children. The complainant did not live in the building, but his daughter and her mother, Darlene Powell, resided on the third floor in an apartment facing the front of the building. *1271The first incident occurred while the complainant was visiting his daughter at the building. The defendant engaged him in a verbal altercation after Daniels accused the complainant’s daughter of looking in her first-floor windows. The matter escalated and the complainant and the defendant eventually moved toward the sidewalk to fight. Before their interaction became physical, the defendant walked away, but then came up behind the complainant and punched him in the eye twice which, according to the complainant, broke bones near the complainant’s eye. The police were called but the defendant left the scene before the police arrived. Although the responding officer completed a police report, it was never entered into the NYPD database. The complainant sustained an injury to his right eye which required surgery that was scheduled for August 11, 2010.

¶4The day before the scheduled surgery, August 10, 2010, the complainant was visiting his daughter and Powell at their home and he encountered the defendant in front of the building. They exchanged words regarding the prior incident and the defendant accused the complainant of stealing his son’s bike. The complainant testified at trial that the defendant told him that he hated him and that, “I got something for you, you understand. You’ll bleed soon.” The defendant then went inside the building and returned, and, standing on top of the stairs of the stoop, started shooting at the complainant. As the complainant tried to drive off on his motorcycle, the defendant descended the stairs and continued to shoot at him. The complainant sustained three gunshot wounds and his motorcycle had several bullet holes in it. Powell called 911, as did two neighbors who heard shots being fired at that time. The police responded to the scene within minutes and found 11 shell casings on a path from the front door, down the steps, onto the sidewalk, and into the street. The defendant was apprehended 20 days later.

¶5After a jury trial, the defendant was convicted of attempted murder in the second degree and assault in the third degree. At issue in this case is whether any errors during the trial deprived the defendant of a fair trial. We find that they did not. Here, the evidence of the defendant’s guilt was overwhelming, and any errors that were made during the trial were harmless, as there is no significant probability that the errors contributed to the defendant’s conviction, and they did not deprive the defendant of his constitutional right to a fair trial (see People v Grant, 7 NY3d 421, 424 [2006]; People v Crimmins, 36 NY2d 230, 237 [1975]).

¶6*1272The evidence as to the identity of the defendant as the perpetrator in both instances was overwhelming. The testimony of both the complainant and Powell, and their respective familiarity with the defendant, established the identification of the defendant as the perpetrator beyond a reasonable doubt (see People v Arce, 170 AD2d 238 [1991]). As to the assault, the defendant did not deny that the incident occurred; rather, his testimony that the complainant was the aggressor and that he was defending himself was rejected by the jury. Immediately after the shooting incident, both the complainant and Powell identified the defendant as the perpetrator to the police and identified him at trial as the individual who shot at and who had, on the earlier date, assaulted the complainant.

¶7The complainant testified at the trial that the defendant assaulted him during the first incident and, thereafter, on August 10, he saw the defendant and spoke to him before the defendant told the complainant he hated him and intended to kill him. The complainant testified that, after he heard the gunshots, he realized he was bleeding, looked over his shoulder and saw the defendant firing a gun at him.

¶8Powell also testified that the defendant was the person who, during the first incident, assaulted the complainant, and who shot at and wounded the complainant during the second incident. Powell was familiar with the defendant because she had spent time with both Daniels and the defendant in their apartment. As to the shooting incident, Powell testified that she awoke to the sound of gunshots and looked out her window to see the defendant firing a gun at the complainant from the front door and stoop. Powell testified that she saw the defendant walk down the steps to the street while continuing to shoot at the complainant as the complainant drove away on his motorcycle. Powell testified that, once the complainant was out of sight, she saw the defendant drive off in his light blue van. Although Powell acknowledged on cross-examination that, on the day of the shooting, one of the two windows in her apartment that faced the street contained an air conditioner, the other had a child window guard in place, and she did not open or lean out either window, Powell’s testimony that she could see the defendant shooting from the doorway was corroborated by the path of shell casings the police found that led from the doorway to the street.

¶9The contention of our dissenting colleague that the evidence was not overwhelming ignores the physical evidence that corroborated the testimony of the witnesses.

¶10Although the People correctly concede that the Supreme *1273Court should not have denied the defendant’s request to introduce evidence from a private investigator to refute Powell’s testimony that she witnessed the shooting from the third-floor windows (see People v Giles, 11 NY3d 495, 499 [2008]; People v Mateo, 2 NY3d 383, 424-425 [2004]; People v Primo, 96 NY2d 351, 355 [2001]; People v Scarola, 71 NY2d 769, 777 [1988]), the error was harmless (see People v Crimmins, 36 NY2d at 237; People v Kavazanjian, 16 AD3d 437 [2005]). Powell testified that she saw the defendant walk down the steps to the street to continue firing at the complainant as he drove away on his motorcycle and that, once the complainant was out of sight, the defendant drove off in his van. The proffered testimony of the private investigator pertained only to Powell’s testimony as to whether the steps were visible from the third-floor windows, not the sidewalk or street (see People v Catalanotte, 36 NY2d 192, 195 [1975]). Moreover, Powell was cross-examined about what was or was not observable from the third floor windows and, therefore, that issue already was before the jury for consideration (see People v Bruner, 222 AD2d 738, 738 [1995]). The dissent discounts the ability of the jurors, who had the opportunity to see and hear the defendant as well as the complainant and Powell, to evaluate the credibility of each and credit or discount the evidence presented (see People v Romero, 7 NY3d 633, 644 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]).

¶11We also reject the defendant’s contention, adopted by our dissenting colleague, that he was deprived of a fair trial by errors he contends were made by the Supreme Court. A defendant is entitled to a fair trial, not a perfect trial (see People v Parris, 4 NY3d 41, 46 [2004]; People v Flores, 84 NY2d 184, 187 [1994]; People v Claudio, 83 NY2d 76, 80 [1993], citing United States v Cronic, 466 US 648, 658 [1984]; People v Rivera, 39 NY2d 519, 523 [1976]). Reversal is not warranted here since the errors did not, singly or in combination, deprive the defendant of a fair trial (see People v Galloway, 54 NY2d 396 [1981]; People v Dunbar, 74 AD3d 1227, 1228 [2010]). We note that many of the alleged errors complained of by the defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to object to them at trial when any error could have been corrected by the trial court (see CPL 470.05 [2]; People v Barcero, 116 AD3d 1060, 1061 [2014]; People v Sanabria, 110 AD3d 1012 [2013]; People v Collins, 109 AD3d 482, 482-483 [2013]; People v Louis, 99 AD3d 725, 726 [2012]). For example, with respect to the admission at trial of recordings of certain telephone calls that the defendant made when he was at Rikers Island prior to its case-in-chief, the prosecu*1274tion provided defense counsel with a log of certain telephone calls made by the defendant while at Rikers Island and informed the court that the People intended to play two of the calls on its direct case, and that the remaining calls potentially would be used to impeach the defendant if he chose to testify. Despite the People’s representation that they intended to use numerous Rikers Island calls to impeach the defendant if he chose to testify, no advance ruling was sought by the defendant as to any of those calls before he took the stand.

¶12In any event, the admission of the recordings of certain of the phone calls made by the defendant which related to his prior criminal wrongdoing or immoral acts was not error; the calls were properly admitted to impeach the defendant so that the jury could properly assess his credibility (see People v Wise, 46 NY2d 321, 326-327 [1978]; People v Callender, 48 AD3d 976, 977 [2008]). For example, when the defendant testified that the only sources of his income were maintenance work, odd jobs, and music producing, he opened the door to the admission of the calls that impeached that testimony, to wit, calls he made discussing income he had received through “dropping women off at men’s houses” (see People v Maerling, 64 NY2d 134, 140-141 [1984]; People v Wise, 46 NY2d at 326-327; People v Callender, 48 AD3d at 977; People v Aponte, 28 AD3d 672, 672 [2006]). Similarly, the telephone call in which the defendant stated that he was awaiting receipt of a check in another person’s name, and that he had the identification to cash the check, was properly admitted as relevant to the defendant’s credibility (see People v Wise, 46 NY2d at 324, 326; People v Bradley, 99 AD3d 934, 937 [2012]; People v Breedlove, 61 AD3d 1120, 1122 [2009]). Other phone calls made by the defendant from Rikers Island were properly admitted to show the defendant’s consciousness of guilt (see People v Christiani, 96 AD3d 870, 871-872 [2012]; People v Spruill, 299 AD2d 374, 375 [2002]). To the extent that the court’s admission of other phone calls made by the defendant was error, the error was harmless (see People v Grant, 7 NY3d 421, 424 [2006]; People v Crimmins, 36 NY2d at 241-242; People v Kennedy, 101 AD3d 1045, 1046 [2012]; People v Louis, 99 AD3d at 726; People v Duggins, 1 AD3d 450, 451 [2003], affd 3 NY3d 522 [2004]).

¶13To the extent that defense counsel did not object to the alleged errors, such inaction did not deprive the defendant of the effective assistance of counsel (see Strickland v Washington, 466 US 668 [1984]; People v Benevento, 91 NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Moreover, the record reveals that defense counsel otherwise provided *1275meaningful representation (see People v Benevento, 91 NY2d at 712; People v Baldi, 54 NY2d at 147).

¶14The defendant’s contention that, in imposing sentence, the Supreme Court penalized him for exercising his right to a jury-trial, is without merit. Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Rivera, J.R, Miller and Duffy, JJ., concur.
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