People v. Smith
| Decision Date | 30 September 2015 |
| Docket Number | 2012-02843, Ind. No. 7717/10. |
| Citation | 17 N.Y.S.3d 438,131 A.D.3d 1270,2015 N.Y. Slip Op. 07043 |
| Parties | The PEOPLE, etc., respondent, v. Rory SMITH, appellant. |
| Court | New York Supreme Court — Appellate Division |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered March 8, 2012, convicting him of attempted murder in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with, inter alia, assault in the third degree and attempted murder in the second degree relating to two altercations with the complainant. The first occurred on July 27, 2010, and the second, an incident during which the defendant repeatedly fired a gun at the complainant, hitting the complainant and his motorcycle, occurred several days thereafter. Both incidents occurred in front of an apartment building in Brooklyn where the defendant resided on the first floor with the mother of his children, Tameka Daniels, and their children. The complainant did not live in the building, but his daughter and her mother, Darlene Powell, resided on the third floor in an apartment facing the front of the building.
The first incident occurred while the complainant was visiting his daughter at the building. The defendant engaged him in a verbal altercation after Daniels accused the complainant's daughter of looking in her first-floor windows. The matter escalated and the complainant and the defendant eventually moved toward the sidewalk to fight. Before their interaction became physical, the defendant walked away, but then came up behind the complainant and punched him in the eye twice which, according to the complainant, broke bones near the complainant's eye. The police were called but the defendant left the scene before the police arrived. Although the responding officer completed a police report, it was never entered into the NYPD database. The complainant sustained an injury to his right eye which required surgery that was scheduled for August 11, 2010.
The day before the scheduled surgery, August 10, 2010, the complainant was visiting his daughter and Powell at their home and he encountered the defendant in front of the building. They exchanged words regarding the prior incident and the defendant accused the complainant of stealing his son's bike. The complainant testified at trial that the defendant told him that he hated him and that, The defendant then went inside the building and returned, and, standing on top of the stairs of the stoop, started shooting at the complainant. As the complainant tried to drive off on his motorcycle, the defendant descended the stairs and continued to shoot at him. The complainant sustained three gunshot wounds
and his motorcycle had several bullet holes in it. Powell called 911, as did two neighbors who heard shots being fired at that time. The police responded to the scene within minutes and found 11 shell casings on a path from the front door, down the steps, onto the sidewalk, and into the street. The defendant was apprehended 20 days later.
After a jury trial, the defendant was convicted of attempted murder in the second degree and assault in the third degree. At issue in this case is whether any errors during the trial deprived the defendant of a fair trial. We find that they did not. Here, the evidence of the defendant's guilt was overwhelming, and any errors that were made during the trial were harmless, as there is no significant probability that the errors contributed to the defendant's conviction, and they did not deprive the defendant of his constitutional right to a fair trial (see People v. Grant, 7 N.Y.3d 421, 424, 823 N.Y.S.2d 757, 857 N.E.2d 52 ; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
The evidence as to the identity of the defendant as the perpetrator in both instances was overwhelming. The testimony of both the complainant and Powell, and their respective familiarity with the defendant, established the identification of the defendant as the perpetrator beyond a reasonable doubt (see People v. Arce, 170 A.D.2d 238, 565 N.Y.S.2d 115 ). As to the assault, the defendant did not deny that the incident occurred; rather, his testimony that the complainant was the aggressor and that he was defending himself was rejected by the jury. Immediately after the shooting incident, both the complainant and Powell identified the defendant as the perpetrator to the police and identified him at trial as the individual who shot at and who had, on the earlier date, assaulted the complainant.
The complainant testified at the trial that the defendant assaulted him during the first incident and, thereafter, on August 10, he saw the defendant and spoke to him before the defendant told the complainant he hated him and intended to kill him. The complainant testified that, after he heard the gunshots, he realized he was bleeding, looked over his shoulder and saw the defendant firing a gun at him.
Powell also testified that the defendant was the person who, during the first incident, assaulted the complainant, and who shot at and wounded
the complainant during the second incident. Powell was familiar with the defendant because she had spent time with both Daniels and the defendant in their apartment. As to the shooting incident, Powell testified that she awoke to the sound of gunshots and looked out her window to see the defendant firing a gun at the complainant from the front door and stoop. Powell testified that she saw the defendant walk down the steps to the street while continuing to shoot at the complainant as the complainant drove away on his motorcycle. Powell testified that, once the complainant was out of sight, she saw the defendant drive off in his light blue van. Although Powell acknowledged on cross-examination that, on the day of the shooting, one of the two windows in her apartment that faced the street contained an air conditioner, the other had a child window guard in place, and she did not open or lean out either window, Powell's testimony that she could see the defendant shooting from the doorway was corroborated by the path of shell casings the police found that led from the doorway to the street.
The contention of our dissenting colleague that the evidence was not overwhelming ignores the physical evidence that corroborated the testimony of the witnesses.
Although the People correctly concede that the Supreme Court should not have denied the defendant's request to introduce evidence from a private investigator to refute Powell's testimony that she witnessed the shooting from the third-floor windows (see People v. Giles, 11 N.Y.3d 495, 499, 873 N.Y.S.2d 244, 901 N.E.2d 737 ; People v. Mateo, 2 N.Y.3d 383, 424–425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 ; People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728 ), the error was harmless (see People v. Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Kavazanjian, 16 A.D.3d 437, 790 N.Y.S.2d 400 ). Powell testified that she saw the defendant walk down the steps to the street to continue firing at the complainant as he drove away on his motorcycle and that, once the complainant was out of sight, the defendant drove off in his van. The proffered testimony of the private investigator pertained only to Powell's testimony as to whether the steps were visible from the third-floor windows, not the sidewalk or street (see People v. Catalanotte, 36 N.Y.2d 192, 195, 366 N.Y.S.2d 403, 325 N.E.2d 866 ). Moreover, Powell was cross-examined about what was or was not observable from the third floor windows and, therefore, that issue already was before the jury for consideration (see People v. Bruner, 222 A.D.2d 738, 738, 634 N.Y.S.2d 862 ). The dissent discounts the ability of the jurors, who had the opportunity to see and hear the defendant as well as the complainant and Powell, to evaluate the credibility of each and credit or discount the evidence presented (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
We also reject the defendant's contention, adopted by our dissenting colleague, that he was deprived of a fair trial by errors he contends were made by the Supreme Court. A defendant is entitled to a fair trial, not a perfect trial (see People v. Parris, 4 N.Y.3d 41, 46, 790 N.Y.S.2d 421, 823 N.E.2d 827 ; People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 ; People v. Claudio, 83 N.Y.2d 76, 80, 607 N.Y.S.2d 912, 629 N.E.2d 384 ; People v. Rivera, 39 N.Y.2d 519, 523, 384 N.Y.S.2d 726, 349 N.E.2d 825, citing United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 ). Reversal is not warranted here since the errors did not, singly or in combination, deprive the defendant of a fair trial (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Dunbar, 74 A.D.3d 1227, 1228, 905 N.Y.S.2d 222 ). We note that many of the alleged errors complained of by the defendant are not errors at all or are unpreserved for appellate review, as the defendant failed to object to them at trial when any error could have been corrected by the trial court (see CPL 470.05[2] ; People v. Barcero, 116 A.D.3d 1060, 1061, 984 N.Y.S.2d 419 ; People v. Sanabria, 110 A.D.3d 1012, 973 N.Y.S.2d 324 ; People v. Collins, 109 A.D.3d 482, 482–483, 970 N.Y.S.2d 80 ; People v. Louis, 99 A.D.3d 725, 726, 951...
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