People v. Huertas

• Decision Date: 19 August 2020
• Docket Number: Ind. No. 791/08,2011–02520
• Citation: 128 N.Y.S.3d 597,186 A.D.3d 731
• Parties: The PEOPLE, etc., respondent, v. Edmond HUERTAS, appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 731

128 N.Y.S.3d 597

The PEOPLE, etc., respondent,

v.Edmond HUERTAS, appellant.

2011–02520

Ind. No. 791/08

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

Argued—February 14, 2019

August 19, 2020

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Robert C. McGann, J.), rendered March 2, 2011, 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. The appeal brings up for review the denial, after a hearing (Robert Hanophy, J.), of that branch of the defendant's omnibus motion which was to suppress evidence of a law enforcement official's observations of him.

ORDERED that the judgment is affirmed.

The defendant was charged with, inter alia, murder in the second degree for shooting his girlfriend in the head on June 2, 2007, resulting in her death. At the jury trial, the People presented the testimony of the victim's close friends, Melissa Roman and Frances Eames. Both witnesses, who resided together, testified that on June 2, 2007, they had several telephone calls with the victim using the direct connect, or "walkie-talkie," function on their cell phones. Roman testified that during one of these calls the victim sounded upset and as if she had been crying.

During a subsequent call, Roman overheard the victim on speaker phone make a request to be picked up from her apartment. The defendant, the victim's live-in boyfriend, then said over the phone that "she's not coming." Both Roman and Eames knew the defendant very well. Roman testified that the defendant directed her, over the speaker phone, to "listen." Following that directive, she heard a "[l]oud sound." A second or two after she heard the sound, the defendant told her that he had "just killed [the victim]." Eames testified that after she was alerted to the conversation by Roman, she called the victim's phone. The defendant answered, and twice stated that he had just killed the victim.

Roman and Eames immediately drove to the victim's apartment. The trip took approximately 10 minutes, and when they arrived they observed the defendant standing inside the apartment holding a black gun. The witnesses also observed the victim seated in a slumped position on the living room couch with her head leaning against the back of the couch. She was making gurgling noises, her hair was soaked in blood, and there was blood on the couch behind her head. The defendant eventually left the apartment holding the gun.

The victim subsequently died. A medical examiner employed by the Office of the Chief Medical Examiner for the City of New York testified that the victim's cause of death was a penetrating gunshot wound

to the head.

On June 7, 2007, the police went to an apartment building in Brooklyn looking for the defendant. When a detective opened the door to an apartment on the third floor of the building, he observed the defendant run toward the rear of the apartment. The defendant was found hiding in one of the apartment's bedrooms, wedged between a bunk bed and the wall, covered by a blanket. He was taken into custody, and was subsequently charged with, inter alia, murder in the second degree and criminal possession of a weapon in the second degree.

At the conclusion of the trial, the jury returned a verdict convicting the defendant of murder in the second degree and criminal possession of a weapon in the second degree.

On appeal, the defendant contends that the Supreme Court should have suppressed, based on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639, testimony regarding observations of the defendant made by a detective in the apartment where the defendant was arrested. However, the defendant's contention is unpreserved for appellate review (see CPL 470.05[2] ). In any event, this contention is without merit. The evidence at the pretrial suppression hearing established that the defendant did not reside at the apartment where he was arrested, and the defendant failed to establish a legitimate expectation of privacy in the apartment (see People v. Bell, 5 A.D.3d 858, 860–861, 773 N.Y.S.2d 491 ; People v. Phillips, 118 A.D.2d 600, 601, 499 N.Y.S.2d 204 ; People v. DeMoss, 106 A.D.2d 395, 397–398, 482 N.Y.S.2d 313 ).

The defendant contends that part of a recording of a 911 emergency telephone call made by Roman after she found the victim following the shooting should not have been admitted into evidence at trial because the recorded statements were hearsay. This contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Perez, 167 A.D.3d 1049, 1050, 90 N.Y.S.3d 276 ), and, in any event, without merit. The portion of the 911 call at issue was properly admitted under the excited utterance exception to the hearsay rule, since the recording evidenced that the witness was under the influence of the excitement of the incident and lacked the reflective capacity essential for fabrication (see People v. Hutchinson, 167 A.D.3d 653, 654, 88 N.Y.S.3d 496 ; People v. Leak, 129 A.D.3d 745, 746, 11 N.Y.S.3d 209 ).

We agree with the Supreme Court's determination to permit Roman and Eames to testify regarding out-of-court statements made by the victim that the defendant had previously assaulted her on two occasions. The victim's out-of-court statements were not admitted for their truth, but to explain the witnesses' state of mind and their subsequent actions on the date of the murder (see People v. Harris, 19 N.Y.3d 679, 686, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ; People v. Rose, 41 A.D.3d 742, 742–743, 840 N.Y.S.2d 363 ; People v. Johnson, 40 A.D.3d 1011, 1012, 837 N.Y.S.2d 222 ; cf. People v. Brooks, 31 N.Y.3d 939, 942, 73 N.Y.S.3d 110, 96 N.E.3d 206 ; People v. Meadow, 140 A.D.3d 1596, 1598–1599, 33 N.Y.S.3d 597 ). Additionally, the court properly instructed the jury on the limited purpose of this testimony (see People v. Rose, 41 A.D.3d at 743, 840 N.Y.S.2d 363 ; People v. Johnson, 40 A.D.3d at 1012, 837 N.Y.S.2d 222 ).

Prior to trial, the Supreme Court ruled that if the defendant were to testify that the shooting was an accident, the People would be permitted to offer evidence, through their cross-examination of him, of the facts underlying his three prior gun-related convictions (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ). The defendant contends that this ruling deprived him of his due process right to a fair trial as it deterred him from testifying at trial. Contrary to the defendant's contention, and the position of our dissenting colleagues, the court's Molineux ruling did not deprive the defendant of his right to a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Cunny, 163 A.D.3d 708, 710, 80 N.Y.S.3d 457 ). Moreover, any error in the ruling was harmless, as there was overwhelming evidence of the defendant's guilt and no reasonable possibility that any error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The evidence at trial overwhelmingly demonstrated that the shooting was intentional. The People presented testimony from, among others, Roman and Eames, who each testified that the defendant confessed to killing the victim. Additionally, just before Roman heard the gunshot over the telephone, the defendant had told her that the victim would not be coming to Roman's apartment and had directed her to "listen." Roman's testimony concerning her telephone conversation with the defendant was substantially corroborated by the recording of her emotional telephone call to 911. Furthermore, when Roman and Eames arrived at the victim's apartment, they observed the defendant standing inside holding a black gun, and the victim seated in a slumped position on the living room couch, making gurgling noises, and her hair was soaked in blood. There was no evidence that the defendant called for help. Instead, the defendant fled the apartment with the gun.

Moreover, the forensic evidence was consistent with an intentional shooting. The medical examiner testified that the gunshot wound

was "to the back of the left side of the head ... located slightly above and behind the left earlobe." The medical examiner also testified that the trajectory of the bullet was downward. Under the circumstances, there is no reasonable possibility that a ruling more favorable to the defendant would have affected the result (see

People v. Grant, 7 N.Y.3d 421, 425, 823 N.Y.S.2d 757, 857 N.E.2d 52 ; People v. Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Cunny, 163 A.D.3d at 710, 80 N.Y.S.3d 457 ; People v. Reese, 181 A.D.2d 699, 700, 581 N.Y.S.2d 217 ).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution since, viewing defense counsel's performance in totality, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ).

The defendant's contention that the judgment of conviction should be reversed based on the unavailability of a portion of the trial minutes is without merit (see People v. Parris, 4 N.Y.3d 41, 44, 46–47, 790 N.Y.S.2d 421, 823 N.E.2d 827 ). Furthermore, the defendant failed to establish his entitlement to a reconstruction hearing (see id. at 48–49, 790 N.Y.S.2d 421, 823 N.E.2d 827 ).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

ROMAN, COHEN and CHRISTOPHER, JJ., concur.

CHAMBERS, J.P., dissents, and votes to reverse the judgment, on the law, and order a new trial, with the following...