People v. Kenneth West

• Decision Date: 12 July 2011
• Citation: 86 A.D.3d 583,926 N.Y.S.2d 659,2011 N.Y. Slip Op. 05975
• Parties: The PEOPLE, etc., respondent,v.Kenneth WEST, appellant.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 583

926 N.Y.S.2d 659

2011 N.Y. Slip Op. 05975

The PEOPLE, etc., respondent,

v.Kenneth WEST, appellant.

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

July 12, 2011.

Janet A. Gandolfo, Sleepy Hollow, N.Y., for appellant.Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Lois Cullen Valerio, and Richard Longworth Hecht of counsel), for respondent.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered April 21, 2009, convicting him of murder in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court erred in permitting opinion testimony from a homicide and forensic consultant without qualifying him as an expert is without merit. A trial court is not required to formally declare or certify a witness to be an expert ( see People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121; People v. Jean–Laurent, 51 A.D.3d 818, 818–819, 859 N.Y.S.2d 658; People v. Wagner, 27 A.D.3d 671, 672, 811 N.Y.S.2d 125). Further, contrary to the defendant's contention, the witness's testimony was not within the common knowledge or experience of the average layperson, and did not invade the province of the jury ( see People v. Lee, 96 N.Y.2d 157, 162, 726 N.Y.S.2d 361, 750 N.E.2d 63; People v. Ocampo, 52 A.D.3d 741, 742, 860 N.Y.S.2d 596; People v. Menendez, 50 A.D.3d 1061, 1061–1062, 856 N.Y.S.2d 647; People v. Harris, 249 A.D.2d 775, 776, 672 N.Y.S.2d 153; People v. Rivera, 236 A.D.2d 428, 429, 654 N.Y.S.2d 147; People v. McDonald, 231 A.D.2d 647, 647–648, 647 N.Y.S.2d 795).

The defendant's contention that he was prejudiced by the denial of his application to sever the trial as to each of the victims of the crimes because the jury was unable to consider the evidence pertaining to each victim separately is purely speculative, especially in light of the fact that the jury acquitted the defendant of the count related to the second victim ( see People v. Cannon, 306 A.D.2d 130, 131, 761 N.Y.S.2d 46; People v. Jones, 244 A.D.2d 359, 360, 663 N.Y.S.2d 654; People v. Berta, 213 A.D.2d 659, 660, 624 N.Y.S.2d 211; see also People v. Brennin, 184 A.D.2d 715, 715–716, 587 N.Y.S.2d 183; People v. Squires, 171 A.D.2d 893, 894, 567 N.Y.S.2d 555). Moreover, to avoid the possibility of prejudice, the trial court repeatedly instructed the jury to consider the evidence with respect to each incident separately, and that the proof in one case could not be used as proof in the other case ( see People v. Gwathney, 298 A.D.2d 526, 527, 748 N.Y.S.2d 661; People v. Hendricks, 192 A.D.2d 552, 553, 596 N.Y.S.2d 725; People v. Rose, 187 A.D.2d 617, 618, 589 N.Y.S.2d 931).

The defendant's contentions that certain remarks made by the prosecutor during her summation were improper and, thus, deprived him of a fair trial are unpreserved for appellate review ( see CPL 470.05[2] ). The defendant did not object to the comments he now challenges ( see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127) or made only unspecified, general objections ( see People v. Romero, 7 N.Y.3d at 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Harris, 98 N.Y.2d 452, 492 n. 18, 749 N.Y.S.2d 766, 779 N.E.2d 705). Further, certain objections were sustained without any further request for curative instructions ( see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370; People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127), or were raised for the first time in a motion for mistrial after the completion of summations ( see People v. Romero, 7 N.Y.3d at 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. LaValle, 3 N.Y.3d 88, 116, 783 N.Y.S.2d 485, 817 N.E.2d 341). In any event, to the extent that any of the challenged remarks were improper, they did not deprive the defendant of a fair trial ( see People v. Rayford, 80 A.D.3d 780, 916 N.Y.S.2d 603, lv. denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187; People v. Cruz, 79 A.D.3d 1145, 913 N.Y.S.2d 329; People v. Rudd, 62 A.D.3d 729, 877 N.Y.S.2d 700).

The defendant's contention that the trial court erred in precluding evidence of third-party culpability at trial is unpreserved for appellate review ( see CPL 470.05[2] ). In any event, the proffered evidence was either lacking in probative value or inadmissible as hearsay ( see People v. Primo, 96 N.Y.2d 351, 728 N.Y.S.2d 735, 753 N.E.2d 164; People v. Molina, 79 A.D.3d 1371, 1376, 914 N.Y.S.2d 331; People v. Rodriguez, 295 A.D.2d 456, 743 N.Y.S.2d 307; People v. Otero, 288 A.D.2d 67, 67–68, 732 N.Y.S.2d 343).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124...