People v. Aviles

• Decision Date: 23 July 2014
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Michael AVILES, appellant.

119 A.D.3d 871
989 N.Y.S.2d 381
2014 N.Y. Slip Op. 05442

The PEOPLE, etc., respondent,
v.
Michael AVILES, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 23, 2014.

Michael G. Paul, New City, N.Y., for appellant.

[989 N.Y.S.2d 382]

Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered April 24, 2012, convicting him of manslaughter in the second degree and criminally negligent homicide, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that the County Court erroneously denied the severance motion of his codefendant, since the defendant affirmatively withdrew his own application for a severance and did not otherwise join in the codefendant's motion ( see People v. McGee, 68 N.Y.2d 328, 333–334, 508 N.Y.S.2d 927, 501 N.E.2d 576;People v. Islam, 22 A.D.3d 599, 600, 804 N.Y.S.2d 329;People v. Ahmr, 22 A.D.3d 593, 594, 804 N.Y.S.2d 331;see also People v. Mack, 89 A.D.3d 864, 865, 932 N.Y.S.2d 163;People v. Turnbull, 52 A.D.3d 747, 747, 860 N.Y.S.2d 189). The defendant's decision to withdraw his severance motion reflected “a deliberate strategic choice,” and, under the circumstances, the defendant should not be heard to complain simply because his chosen strategy proved unsuccessful ( People v. Barbaran, 118 A.D.2d 578, 580, 499 N.Y.S.2d 186;see People v. Cruz, 144 A.D.2d 686, 687, 535 N.Y.S.2d 39;People v. Hernandez, 33 A.D.2d 747, 747, 305 N.Y.S.2d 901,affd.28 N.Y.2d 522, 319 N.Y.S.2d 70, 267 N.E.2d 883).

Contrary to the defendant's contention, evidence of the child victim's prior injuries was properly admitted to show that the injuries that caused her death were not accidental ( see People v. Henson, 33 N.Y.2d 63, 71–73, 349 N.Y.S.2d 657, 304 N.E.2d 358;see People v. Allah, 13 A.D.3d 639, 789 N.Y.S.2d 499;People v. Sims, 110 A.D.2d 214, 221, 494 N.Y.S.2d 114). The introduction of such evidence is particularly warranted where, as here, “the crime charged has occurred in the privacy of the home and the facts are not easily unraveled” ( People v. Henson, 33 N.Y.2d at 72, 349 N.Y.S.2d 657, 304 N.E.2d 358).

Contrary to the defendant's contention, reversal is not warranted due to the late disclosure of certain Rosario material ( see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, ...