People v. DeBerry

• Decision Date: 16 December 1996
• Citation: 651 N.Y.S.2d 559,234 A.D.2d 470
• Parties: The PEOPLE, etc., Respondent, v. Darnell DeBERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 559

651 N.Y.S.2d 559

234 A.D.2d 470

The PEOPLE, etc., Respondent, v. Darnell DeBERRY, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 16, 1996.

Daniel L. Greenberg, New York City (Susan Epstein, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Victor Barall, and Itamar J. Yeger, of counsel), for respondent.

Before MILLER, J.P., and SULLIVAN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus J.), rendered August 8, 1994, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Photographs of homicide victims are admissible to demonstrate the position of the victim's body or the placement of the victim's wound or wounds (see, People v. Pobliner, 32 N.Y.2d 356, 370, 345 N.Y.S.2d 482, 298 N.E.2d 637). The disputed photographs tended to corroborate the testimony of the medical examiner regarding the placement of the gunshot wound. The fact that those photographs "portray a gruesome spectacle and [might have tended] to arouse passion and resentment against the defendant in the minds of the jury" did not require their exclusion ( People v. Pobliner, supra, at 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637; see, People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178). Weighing their probative value against the potential for prejudice, we find that the trial court did not improvidently exercise its discretion in admitting the photographs into evidence (see, People v. Ponce, 213 A.D.2d 725, 624 N.Y.S.2d 283; People v. Ellwood, 205 A.D.2d 553, 554, 613 N.Y.S.2d 197; People v. Dellemand, 205 A.D.2d 551, 552, 613 N.Y.S.2d 195).

The trial court correctly determined that ballistics evidence recovered from a person other than the victim was relevant and admissible to complete the narrative of the incident (see, People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850; People v. Johnson, 210 A.D.2d 256, 620 N.Y.S.2d 250). Further, the court gave appropriate limiting instructions.

The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review (see, People v. Allen, 86 N.Y.2d 101, 629 N.Y.S.2d 1003, 653 N.E.2d 1173; People v. Buckley, 75...