People v. Parsley

• Decision Date: 10 May 2017
• Citation: 55 N.Y.S.3d 267,150 A.D.3d 894
• Parties: The PEOPLE, etc., respondent, v. Charles PARSLEY, appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 894

55 N.Y.S.3d 267

The PEOPLE, etc., respondent,

v.Charles PARSLEY, appellant.

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

May 10, 2017.

Barry A. Weinstein, Bronx, NY, for appellant, and appellant pro se.

Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (John J. Carmody, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LaSALLE, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Zambelli, J.), rendered June 26, 2012, convicting him of murder in the second degree (two counts), attempted murder in the second degree, burglary in the first degree, and assault in first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his conviction was not supported by legally sufficient evidence is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that the Supreme Court should have conducted in camera inquiries of four jurors who may have overheard a witness's outburst in the courtroom of "Why did you do this?" to determine their ability to continue to serve impartially is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hicks, 6 N.Y.3d 737, 810 N.Y.S.2d 396, 843 N.E.2d 1136 ; People v. Watson, 84 A.D.3d 1126, 923 N.Y.S.2d 219, affd. 20 N.Y.3d 1018, 963 N.Y.S.2d 166, 985 N.E.2d 1227 ). After the outburst, the defendant never requested that such inquiries be made, and instead moved for a mistrial. In any event, there is no indication in the record that the jurors who might have overheard the outburst were incapable of reaching an impartial verdict, and the prompt curative instruction given by the court was sufficient to cure any prejudicial effect that the outburst may have had on the jury (see People v. Vann, 182 A.D.2d 655, 657, 581 N.Y.S.2d 865 ).

The Supreme Court providently exercised its discretion in allowing the People to offer into evidence testimony regarding the length of time it took a police officer to drive from the crime scene to the Robert F. Kennedy Bridge (formerly known as the Triborough Bridge). Demonstrations and tests, when relevant to a contested issue, can "play a positive and helpful role in the ascertainment of the truth" (People v. Caballero, 34 A.D.3d 690, 691, 824 N.Y.S.2d 427, quoting People v. Acevedo, 40 N.Y.2d 701, 704, 389 N.Y.S.2d 811, 358 N.E.2d 495 ). Here, whether the defendant's vehicle could have traveled from the crime scene in time to be recorded by surveillance video at the Robert F. Kennedy Bridge approximately 15 minutes later was a contested issue that warranted the admission of testimony from a police officer regarding his experience driving the most likely route taken by the defendant's vehicle from the crime scene to the bridge. Any variation in the circumstances under which this demonstration was conducted affected the weight of the evidence, but was not a basis for its exclusion (see People v. Gorham, 72 A.D.3d 1108, 1110, 900 N.Y.S.2d 141 ; People v. Mariner, 147 A.D.2d 659, 538 N.Y.S.2d 61 ).

The...