People v. Gonzalez

• Citation: 177 A.D.3d 569,114 N.Y.S.3d 319
• Decision Date: 26 November 2019
• Docket Number: Ind. 1436/11,10444
• Parties: The PEOPLE of the State of New York, Respondent, v. Emilio GONZALEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 569
114 N.Y.S.3d 319

The PEOPLE of the State of New York, Respondent,
v.
Emilio GONZALEZ, Defendant–Appellant.

10444
Ind. 1436/11

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

ENTERED: NOVEMBER 26, 2019

114 N.Y.S.3d 320

Christina Swarns, Office of the Appellate Defender, New York (Kami Lizarraga of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

Mazzarelli, J.P., Kapnick, Gesmer, Moulton, JJ.

177 A.D.3d 569

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered September 16, 2013, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson , 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its resolution of inconsistencies in testimony. The testimony of the two principal witnesses was consistent as to the critical facts.

The court providently exercised its discretion in admitting a tape of a 911 call made after the stabbing, in which screaming and crying, undisputedly qualifying as excited utterances, are

177 A.D.3d 570

heard. "The tape was relevant to corroborate some of the testimony, and was not so

114 N.Y.S.3d 321

inflammatory that its prejudicial effect exceeded its probative value" ( People v. Harris , 99 A.D.3d 608, 609, 952 N.Y.S.2d 552 [1st Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ). Defendant did not preserve his claim that the People failed to lay a proper foundation for admission of the 911 tape, and we decline to review it in the interest of...