People v. Dixon

• Decision Date: 26 April 2019
• Docket Number: 94,KA 14–00855
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph DIXON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

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99 N.Y.S.3d 534

The PEOPLE of the State of New York, Respondent,
v.
Joseph DIXON, Defendant–Appellant.

94
KA 14–00855

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

Entered: April 26, 2019

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOSEPH DIXON, DEFENDANT–APPELLANT PRO SE.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree ( Penal Law § 125.20[1] ). On the evening of November 22, 2011, defendant was observed arguing with the victim, his girlfriend, at her home. The next morning, November 23, a friend picked defendant up on the road outside the victim's home. That, the friend would testify, was unusual. On a typical morning, he picked defendant up at the victim's home and saw the victim. Sometimes, the friend had coffee

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with defendant and the victim. Later on November 23, defendant told the friend that

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he was moving to Tennessee. The following day, November 24, the victim was found beaten and strangled to death in her home. The police located defendant in Pennsylvania. In an interview with the police, defendant admitted that, on the evening of November 22, he and the victim had been drinking heavily, and he pummeled her repeatedly with his fists. "It always ended up in a fight every time we drank together." Defendant told the police that he did not recall most of what happened because he was black-out drunk. He insisted, however, that he knew the victim was alive when he left her house because he heard her moaning.

Defendant contends that County Court abused its discretion in allowing testimony about prior acts of domestic violence that defendant committed against the victim. We reject that contention. It is well settled that, " ‘[i]n a domestic violence homicide, ... it is highly probative—quite often far outweighing any prejudice—that a couple's [relationship] was strife-ridden and that defendant previously struck and/or threatened the [ ]victim.... Indeed, it has also been held that such evidence in like contexts is highly probative of the defendant's motive and [i]s either directly related to or inextricably interwoven ... with the issue of his [or her] identity as the killer’ " ( People v. Parsons, 30 A.D.3d 1071, 1073, 816 N.Y.S.2d 271 [4th Dept. 2006], lv denied 7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807 [2006] ; see People v. Rogers, 103 A.D.3d 1150, 1152, 958 N.Y.S.2d 835 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ). Here, the victim's sister testified that, over the duration of the relationship, the victim suffered frequent black eyes and bruises that got worse as the relationship progressed. She also heard defendant leave threatening messages on the victim's answering machine. Another witness, an acquaintance, was around defendant and the victim only twice, and both times heard arguing and swearing. One of those times, defendant displayed physical rage, albeit towards an inanimate object. We conclude that the testimony of the sister and the acquaintance was probative of intent, motive, and identity in this domestic violence homicide, and its probative value was not outweighed by its prejudicial impact (see Rogers, 103 A.D.3d at 1152–1153, 958 N.Y.S.2d 835 ).

Defendant's further contention that some of the foregoing testimony constituted inadmissible hearsay is not preserved for our review (see People v. Pendarvis, 143 A.D.3d 1275, 1276, 39 N.Y.S.3d 348 [4th Dept. 2016], lv denied 28 N.Y.3d 1149, 52 N.Y.S.3d 300, 74 N.E.3d 685 [2017] ; cf. People v. Cotton, 120 A.D.3d 1564, 1566, 993 N.Y.S.2d 225 [4th Dept. 2014], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 625, 56 N.E.3d 905 [2016] ). In any event, we conclude that any error in admitting the testimony is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). We likewise conclude

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that, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and,...