People v. Gholam

• Decision Date: 04 October 2012
• Parties: The PEOPLE of the State of New York, Respondent, v. Haron GHOLAM, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 441
951 N.Y.S.2d 526
2012 N.Y. Slip Op. 06647

The PEOPLE of the State of New York, Respondent,
v.
Haron GHOLAM, Defendant–Appellant.

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

Oct. 4, 2012.

[951 N.Y.S.2d 527]

Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Fried, Frank, Harris, Shriver & Jacobson, LLP, New York (Leah C. Aden of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), for respondent.

TOM, J.P., FRIEDMAN, ACOSTA, DeGRASSE, ROMÁN, JJ.

[99 A.D.3d 441]Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered July 17, 2007, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to a term of eight years, unanimously affirmed.

We find that the trial court did not err in admitting defendant's written confession and portions of his videotaped confession by which he described his activities with his accomplices on the day of his encounter with Thomas Whitney, Jr., the victim of the crime. Notwithstanding defendant's argument, the challenged evidence did not concern the type of illegal or immoral conduct that would have deprived defendant of a fair trial ( see e.g. People v. Jenneman, 37 A.D.3d 736, 832 N.Y.S.2d 207 [2007],lv. denied9 N.Y.3d 866, 840 N.Y.S.2d 895, 872 N.E.2d 1201 [2007] ).

In the early morning hours of May 21, 2006, defendant and his six accomplices attacked Whitney in the street. In the course of the attack, Whitney sustained a fatal skull fracture. Defendant does not challenge the admission of the portion of the videotaped confession by which he admitted to taking a swing at Whitney during the attack. However, defendant argues that the videotape should have been redacted to eliminate his statements that he was present when his accomplices were involved in a scuffle inside of a nightclub just prior to the attack; that one of defendant's accomplices directed a racial epithet at Whitney immediately before the attack; that one of the accomplices stole Whitney's wallet and defendant stole his cell phone as he lay unconscious on the ground; that defendant's accomplices[99 A.D.3d 442]used Whitney's credit card to make illicit purchases on the morning of the attack and that defendant and his accomplices smoked marijuana on the morning of the attack. Defendant further contends that questions put to him regarding a small yellow hammer that he admitted to having carried around in the past for “protection” should have been excised from the videotape. Defendant takes the position that his admission that he swung at Whitney and missed was the only part of his statements that constituted relevant evidence. This argument does not withstand...