People v. Mulligan

• Decision Date: 20 June 2014
• Citation: 2014 N.Y. Slip Op. 04588,118 A.D.3d 1372,988 N.Y.S.2d 354
• Parties: The PEOPLE of the State of New York, Respondent, v. Edwin L. MULLIGAN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1372

988 N.Y.S.2d 354

2014 N.Y. Slip Op. 04588

The PEOPLE of the State of New York, Respondent,

v.Edwin L. MULLIGAN, Defendant–Appellant.

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

June 20, 2014.

Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant.

Edwin L. Mulligan, Defendant–Appellant pro se.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), For Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03[1][b], [3] ). During the trial, County Court admitted in evidence a 911 recording containing several statements that were made approximately two minutes after the shooting that resulted in the charges herein. During the recording, a witness stated that he had found the victim after she had been shot, and that the victim was conscious but did not know where she had been shot. The 911 operator asked the witness who had shot the victim, and the witness initially responded, “I guess her boyfriend.” The witness then asked the victim to identify the shooter, the victim responded by identifying defendant, and the witness repeated that response to the 911 operator.

We reject defendant's contention that the court erred in admitting in evidence the victim's statements on the 911 recording under the excited utterance exception to the hearsay rule. In determining whether to admit such statements in evidence, “it is necessary to review the facts of the case to consider the atmosphere surrounding the statements and thus determine whether they were precipitated by the subject event” ( People v. Norton, 164 A.D.2d 343, 353, 563 N.Y.S.2d 802,affd.79 N.Y.2d 808, 580 N.Y.S.2d 174, 588 N.E.2d 72). The fact “[t]hat statements were made in response to an inquiry does not disqualify them as excited utterances but rather is a fact to be considered by the trial court” ( People v. Cotto, 92 N.Y.2d 68, 79, 677 N.Y.S.2d 35, 699 N.E.2d 394). Here, the evidence in the record establishes that the victim was shot four times in front of her 14–month–old toddler, and the statements at issue were made within minutes of that incident. Moreover, during the medical treatment administered at the scene shortly after the 911 call, the victim “was crying out that she didn't want to die.” We agree with the People that such evidence establishes that the victim “ ‘spoke while under the stress or influence of the excitement caused by the event, so that [her] reflective capacity was stilled’ ... The spontaneity of the declaration guarantee[d] its trustworthiness and reliability” ( People v. Cantave, 21 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257).

We agree with defendant, however, that the court erred in admitting in evidence the statement of the witness identifying defendant as the shooter under the present sense impression exception to the hearsay rule. It is well settled that, in order “[t]o qualify as a present sense impression, the out-of-court statement must be (1) made by a person perceiving the event as it is unfolding or immediately afterward ..., and (2) corroborated by independent evidence establishing the reliability of the contents of the statement” ( id. at 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257). Here, the witness did not see the shooting, and he confirmed defendant's identity as the shooter only after questioning the victim ( see People v. Vasquez, 88 N.Y.2d 561, 580, 647 N.Y.S.2d 697, 670 N.E.2d 1328;see also People v. Brown, 104 A.D.3d 1203, 1204, 960 N.Y.S.2d 588,lv. denied21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392). Therefore, the witness's statement was not admissible as a present sense impression, and we conclude that the admission of that statement in evidence improperly bolstered the victim's identification of defendant as the shooter ( see People v. Spencer, 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753,lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114,reconsideration denied20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624;see generally People v. Smith, 22 N.Y.3d 462, 465–467, 982 N.Y.S.2d 809). We conclude, however, that the court's error “is harmless because the ‘proof of [defendant's] guilt was overwhelming ... and ... there was no significant probability that the jury would have acquitted [him] had the proscribed evidence not been introduced’ ” ( Spencer, 96 A.D.3d at 1553, 946 N.Y.S.2d 753, quoting People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166;see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Defendant's further contention that the court erred in admitting in evidence the testimony of a police officer that bolstered the victim's identification of defendant lacks merit inasmuch as that testimony provided a narrative of the events leading to defendant's arrest ( see e.g. People v. Perry, 62 A.D.3d 1260, 1261, 877 N.Y.S.2d 726,lv. denied12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081;People v. Mendoza, 35 A.D.3d 507, 507, 826 N.Y.S.2d 146,lv. denied8 N.Y.3d 987, 838 N.Y.S.2d 491, 869 N.E.2d 667;People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630,lv. denied98 N.Y.2d 681, 746 N.Y.S.2d 471, 774 N.E.2d 236). In any event, any such error is harmless ( see generally Crimmins, 36 N.Y.2d at 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787), particularly in view “of the ‘clear and strong’ identification of defendant by the victim and the other evidence of defendant's guilt” ( People v. Simms, 244 A.D.2d 920, 920–921, 665 N.Y.S.2d 185,lv. denied91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038;see People v. McCullen, 63 A.D.3d 1708, 1709, 881 N.Y.S.2d 577,lv. denied13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019;People v. Cunningham, 233 A.D.2d 845, 846, 649 N.Y.S.2d 629,lv. denied89 N.Y.2d 1091, 660 N.Y.S.2d 384, 682 N.E.2d 985).

Defendant's contention that he was denied a fair trial by prosecutorial misconduct because the prosecutor attempted to mislead the jury on the issue whether the victim was wearing a winter coat when she was shot is not preserved for our review ( see People v. Golson, 93 A.D.3d 1218, 1219–1220, 940 N.Y.S.2d 423,lv. denied19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435;see generally People v. Rogers, 103 A.D.3d 1150, 1154, 958 N.Y.S.2d 835,lv. denied21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142) and, in any event, that contention lacks merit. Although a “ ‘prosecutor has a duty to correct trial testimony if he or she knows that it is false’ ” ( People v. McDuffie, 77 A.D.3d 1360, 1361, 907 N.Y.S.2d 764,lv. denied16 N.Y.3d 833, 921 N.Y.S.2d 197, 946 N.E.2d 185;see People v. Savvides, 1 N.Y.2d 554, 556–557, 154 N.Y.S.2d 885, 136 N.E.2d 853), the record does not establish that the prosecutor elicited false testimony or misled the jury ( see generally People v. Kirk, 96 A.D.3d 1354, 1359, 945 N.Y.S.2d 818,lv. denied20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330).

Defendant contends that the prosecutor also engaged in misconduct by cross-examining him regarding his failure to contact the police after the shooting, thereby infringing upon his right to remain silent, and then engaged in further misconduct by commenting on that failure during summation. Those contentions are preserved for our review only to the extent that defendant objected to parts of the prosecutor's summation. In any event, contrary to defendant's contention regardingcross-examination, “[t]he People's primary focus was on defendant's conduct, to wit, his flight and his failure to seek aid for the victim [and their child], rather than [defendant's] silence ... Moreover, defendant's failure to contact the police was admissible as inconsistent with his defense” ( People v. Guzman, 259 A.D.2d 364, 365, 688 N.Y.S.2d 10,lv. denied93 N.Y.2d 925, 693 N.Y.S.2d 508, 715 N.E.2d 511;see generally People v. Rothschild, 35 N.Y.2d 355, 360–361, 361 N.Y.S.2d 901, 320 N.E.2d 639). We further conclude that the disputed parts of the People's summation were fair comment upon the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564). We reject defendant's related contention that he was denied meaningful representation based on defense counsel's failure to preserve for our review the issue of prosecutorial misconduct in its entirety. An attorney's “failure to ‘make a motion or argument that has little or no chance of success' ” does not amount to ineffective assistance ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883). For the reasons discussed above, the prosecutor's cross-examination of defendant on the subject of his failure to contact police was proper and thus any argument to the contrary had “little or no chance of success” ( id.). We further conclude that defendant was not deprived of a fair trial by the cumulative effect of the errors alleged herein ( see People v. Snyder, 100 A.D.3d 1367, 1370, 953 N.Y.S.2d 430,lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285;People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224,lv. denied11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447).

Defendant further contends in his main and pro se supplemental briefs that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence, basing both...