People v. Oliver

• Citation: 193 A.D.3d 1081,146 N.Y.S.3d 666
• Decision Date: 28 April 2021
• Docket Number: 2015-00585,Ind. No. 2384/11
• Parties: The PEOPLE, etc., respondent, v. Kysheen OLIVER, appellant.
• Court: New York Supreme Court Appellate Division

193 A.D.3d 1081
146 N.Y.S.3d 666

The PEOPLE, etc., respondent,
v.
Kysheen OLIVER, appellant.

2015-00585
Ind. No. 2384/11

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

Argued—March 16, 2021
April 28, 2021

146 N.Y.S.3d 667

Paul Skip Laisure, New York, N.Y. (Denise A. Corsi´ of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

146 N.Y.S.3d 668

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mark Dwyer, J.), rendered December 17, 2014, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of manslaughter in the second degree in connection with the death of his girlfriend's 17–month old foster son (hereinafter the child). On the date of the incident, the child had been left in the defendant's care, while the defendant's girlfriend took her other children to school. According to the defendant's girlfriend, after she returned home, she observed the child unresponsive and lying in his own vomit. The child was transported to a hospital, where he was diagnosed with multiple rib fractures and massive internal bleeding from recent, severe trauma. The child died from his injuries soon after.

Contrary to the defendant's contention, the Supreme Court properly admitted, as adoptive admissions, recordings of telephone calls the defendant made to his cousin, while the defendant was incarcerated. "An adoptive admission occurs ‘when a party acknowledges and assents to something already uttered by another person, which thus becomes effectively the party's own admission’ " ( People v. Vining, 28 N.Y.3d 686, 690, 71 N.E.3d 563, quoting People v. Campney, 94 N.Y.2d 307, 311, 704 N.Y.S.2d 916, 726 N.E.2d 468 [internal quotation marks and emphasis omitted]). Here, the defendant clearly assented to his cousin's assertions that the defendant struck the child by accident and had not meant to harm the child (see People v. Vining, 28 N.Y.3d at 690, 49 N.Y.S.3d 72, 71 N.E.3d 563 ; People v. Morales, 176 A.D.3d 1235, 1236, 109 N.Y.S.3d 650 ).

The defendant was not denied his constitutional right to present a defense. " ‘[T]he right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence’ " ( People v. Jin Cheng Lin, 26 N.Y.3d 701, 727, 27 N.Y.S.3d 439, 47 N.E.3d 718, quoting People v. Hayes, 17 N.Y.3d 46, 53, 926 N.Y.S.2d 382, 950 N.E.2d 118 ). " ‘There must be a proper foundation laid for the introduction of prior inconsistent statements of a witness. In order to prevent surprise and give the witness the first opportunity to explain any apparent inconsistency between his or her testimony at trial and his or her previous statements, he or she must first be questioned as to the time, place and substance of the prior statement’ " ( People v. Haywood, 124 A.D.3d 798, 799, 2 N.Y.S.3d 164, quoting People v. Duncan, 46 N.Y.2d 74, 80–81, 412 N.Y.S.2d 833, 385 N.E.2d 572 ). Here, the Supreme Court properly precluded the defendant from testifying as to statements allegedly made to him by his girlfriend, as the defendant failed to lay a proper foundation for the introduction of those alleged prior inconsistent statements (see...