People v. Green

• Decision Date: 28 February 2012
• Citation: 939 N.Y.S.2d 520,2012 N.Y. Slip Op. 01616,92 A.D.3d 953
• Parties: The PEOPLE, etc., respondent, v. Avery GREEN, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01616

92 A.D.3d 953

939 N.Y.S.2d 520

The PEOPLE, etc., respondent,

v.Avery GREEN, appellant.

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

Feb. 28, 2012.

David Gandin, Walden, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Cohen, J.), rendered March 20, 2008, convicting him of murder in the first degree, robbery in the first degree (five counts), robbery in the second degree (three counts), criminal possession of a weapon in the second degree (three counts), assault in the second degree (two counts), burglary in the second degree, attempted burglary in the second degree, attempted assault in the second degree, criminal sale of a firearm in the third degree (two counts), criminal possession of a weapon in the third degree (two counts), criminal sale of a controlled substance in the third degree (three counts), criminal possession of a controlled substance in the third degree (four counts), conspiracy in the fourth degree (two counts), criminal possession of a controlled substance in the fourth degree (two counts), conspiracy in the fifth degree, and enterprise corruption, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the prosecutor's opening statement failed to describe counts 35 through 37 of the indictment is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). The remaining challenged portions of the prosecutor's opening statement “adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial” ( People v. Larios, 25 A.D.3d 569, 570, 806 N.Y.S.2d 726; see CPL 260.30[3]; People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301).

The County Court providently exercised its discretion in admitting the testimony of an expert witness concerning gangs, including their customs and violent practices. This evidence was probative of the defendant's motive, as well as explanatory of the defendant's actions and, thus, was critical to the jury's understanding of the relationship between the defendant and the victims ( see People v. Aguilar, 79 A.D.3d 899, 900, 912 N.Y.S.2d 676; People v. Scott, 70 A.D.3d 977, 897 N.Y.S.2d 138).

Contrary to the defendant's contention, the County Court providently exercised its discretion in permitting a witness to testify as to threats made to him prior to trial, as there was circumstantial evidence linking the defendant to those threats ( see People v. Spruill, 299 A.D.2d 374, 375, 750 N.Y.S.2d 312). “Such evidence is a factor upon which a jury can infer the defendant's ‘consciousness of guilt’ ” ( People v. Myrick, 31 A.D.3d 668, 669, 818 N.Y.S.2d 287, quoting People v. Cotto, 222 A.D.2d 345, 345, 635 N.Y.S.2d 623; see People v. Kornegay, 164 A.D.2d 868, 559 N.Y.S.2d 552).

After hearing a recording of a rap performance proffered by the People, the County Court admitted into evidence a transcript of lyrics from that performance, which had been written by the defendant or members of the gang with which the defendant was affiliated, and described crimes that the gang members committed or were going to commit. The defendant affirmatively waived his right, on appeal, to challenge the admission of the transcript, since he was represented by counsel when he stipulated to the admission of the transcript into evidence ( see People v. Riley, 79 A.D.3d 911, 912, 912 N.Y.S.2d 413).

The defendant argues that the admission into evidence of the testimony of an FBI special agent and a former New York State Police investigator (hereinafter together the law enforcement witnesses) concerning their understanding of other written rap lyrics, which were found in the defendant's bedroom, as well as the structure of the gang to which the defendant belonged, and the defendant's place in that hierarchy, violated his right to confront witnesses against him since it constituted testimonial hearsay ( see Crawford v. Washington, 541 U.S. 36, 51–52, 124 S.Ct. 1354, 158 L.Ed.2d 177) and that, moreover, the testimony was “prejudicial.” The admission of this testimony into evidence, however, does not warrant reversal.

The challenged testimony was based on, among other things, transcripts of wiretapped conversations between and amongst members of the gang to which the defendant belonged, including the defendant himself, personal observations made and investigations conducted by the law enforcement witnesses, and interviews with and questioning of former and current members of the defendant's gang conducted by the law enforcement witnesses.

Contrary to the defendant's contention, the testimony with respect to recorded telephone conversations between the defendant and other persons, including police informants, in which the logistics for numerous criminal acts were arranged, was properly admitted into evidence. These conversations represented part of the criminal res gestae and, thus, are not hearsay in the first instance ( see People v. Taylor, 82 A.D.3d 1016, 1017, 919 N.Y.S.2d 62; People v. Adames, 53 A.D.3d 503, 862 N.Y.S.2d 80), let alone testimonial hearsay. Similarly, to the extent that the expert testimony based on the wiretap transcripts was not elicited to prove the truth of a declarant's statement, but for other reasons, that statement was not hearsay ( see People v. Perez, 91 A.D.3d 673, 673, 935 N.Y.S.2d 897), much less testimonial hearsay. Moreover, even if some of the declarations retrieved from the wiretapped conversations and repeated to the jury by the law enforcement witnesses meet the definition of common-law hearsay, those declarations do not constitute testimonial hearsay, since the declarants were not subject to formal or quasi-formal questioning when they made those declarations ( see generally Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. 1354). Further, since the declarants were presumably unaware that their conversations were being wiretapped, they did not make those declarations with a reasonable expectation that the declarations would be used prosecutorially ( id. at 51, 68, 124 S.Ct. 1354; see People v. Clay, 88 A.D.3d 14, 17–18, 926 N.Y.S.2d 598). Crucially, the defendant made no objection before the County Court—and makes no argument to this Court—that those declarations should have been excluded from evidence as simple nontestimonial hearsay. To the extent that the law enforcement witnesses testified as to any declarations made to them in...