People v. Boop

• Decision Date: 13 June 2014
• Citation: 987 N.Y.S.2d 527,2014 N.Y. Slip Op. 04296,118 A.D.3d 1273
• Parties: The PEOPLE of the State of New York, Respondent, v. Aaron M. BOOP, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1273
987 N.Y.S.2d 527
2014 N.Y. Slip Op. 04296

The PEOPLE of the State of New York, Respondent,
v.
Aaron M. BOOP, Defendant–Appellant.

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

June 13, 2014.

[987 N.Y.S.2d 528]

Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Matthew Dunham of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS AND VALENTINO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts each of vehicular manslaughter in the first degree (Penal Law § 125.13[1], [2][b] ) and driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3] ). The charges arose from an incident in which defendant, while in an intoxicated condition, drove a pickup truck that went off of the road and struck a tree, causing the death of the front seat passenger.

Defendant failed to object when the prosecutor elicited testimony from a deputy sheriff that defendant looked away instead of answering certain questions about the death of the victim, and thus failed to preserve for our review his contention that the prosecutor improperly used his postarrest silence against him at trial ( see People v. Jackson, 108 A.D.3d 1079, 1079, 968 N.Y.S.2d 789,lv. denied22 N.Y.3d 997, 981 N.Y.S.2d 2;

[987 N.Y.S.2d 529]

People v. Ray, 63 A.D.3d 1705, 1707, 880 N.Y.S.2d 837,lv. denied13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969). In any event, any error in the admission of that testimony is harmless beyond a reasonable doubt because there is “no reasonable possibility that the error might have contributed to defendant's conviction” ( People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787;see Jackson, 108 A.D.3d at 1079–1080, 968 N.Y.S.2d 789;People v. Murphy, 79 A.D.3d 1451, 1453, 913 N.Y.S.2d 815,lv. denied16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203;People v. Mosby, 239 A.D.2d 938, 938–939, 659 N.Y.S.2d 610,lv. denied90 N.Y.2d 942, 664 N.Y.S.2d 760, 687 N.E.2d 657).

Defendant further contends that County Court erred in admitting in evidence photographs of the tree that the vehicle struck, because flowers had been laid at the base of the tree. Defendant contends that the photographs were an improper appeal to the emotions of the jurors because the flowers constituted a “shrine” to the victim. Contrary to the contention of the People, we conclude that defendant preserved his contention for our review. Defense counsel objected to the photographs, noted the presence of the flowers, and argued that defendant would be prejudiced by the admission of the photographs in evidence. Consequently, the issue is preserved for our review because “the court ‘was aware of, and expressly decided, the [issue] raised on appeal’ ” ( People v. Collins, 106 A.D.3d 1544, 1546, 964 N.Y.S.2d 393,lv. denied21 N.Y.3d 1072, 974 N.Y.S.2d 321, 997 N.E.2d 146, quoting People v. Hawkins, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946;see People v. Roberts, 110 A.D.3d 1466, 1467–1468, 972 N.Y.S.2d 784;People v. Duncan, 177 A.D.2d 187, 190–191, 582 N.Y.S.2d 847,lv. denied79 N.Y.2d 1048, 584 N.Y.S.2d 1016, 596 N.E.2d 414). We nevertheless reject defendant's contention on the merits. “The general rule is stated in People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637[,rearg. denied33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710,cert. denied416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110];see also People v. Stevens, 76 N.Y.2d 833, 560 N.Y.S.2d 119, 559 N.E.2d 1278: photographs are admissible if they tend ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded ‘only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” ( People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;see People v. Lawson, 114 A.D.3d 962, 963, 980 N.Y.S.2d 586). Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury's factual determinations, including whether defendant was driving while in an intoxicated condition.

Defendant did not object when the court directed the prosecutor to turn off the overhead projector upon which certain evidence was displayed to the members of the public seated in the courtroom, and thus failed to preserve for our review his contention that the court thereby closed the courtroom in violation of defendant's right to a public trial ( see People v. George, 20 N.Y.3d 75, 80–81, 955 N.Y.S.2d 846, 979 N.E.2d 1173,cert. denied––– U.S. ––––, 133 S.Ct. 1736, 185 L.Ed.2d 796;People v. Spears, 94 A.D.3d 498, 500, 941 N.Y.S.2d 500,lv. denied19...