People v. Smith

Decision Date17 April 2019
Docket Number2016–01760,Ind. No. 1699/14
Citation171 A.D.3d 1102,98 N.Y.S.3d 313
Parties The PEOPLE, etc., Respondent, v. Shannon SMITH, Appellant.
CourtNew York Supreme Court — Appellate Division

171 A.D.3d 1102
98 N.Y.S.3d 313

The PEOPLE, etc., Respondent,
v.
Shannon SMITH, Appellant.

2016–01760
Ind.
No. 1699/14

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

Submitted - January 15, 2019
April 17, 2019


98 N.Y.S.3d 315

Daniel Guttmann, Smithtown, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Christopher J. Blira–Koessler of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

171 A.D.3d 1102

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered January 11, 2016, convicting him of attempted murder in the second degree (two counts), assault in the first degree (two counts), criminal possession of a weapon in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The charges against the defendant arose from a shooting in Astoria, Queens, that occurred on July 3, 2014. One victim was shot in his arm, back, and leg, and a second victim, who was

171 A.D.3d 1103

15 years old at that time, was shot in the shoulder. After a brief car chase, the police, who had been in the vicinity at the time of the shooting, apprehended the defendant. The father of the 15–year–old victim, who had witnessed the shooting, identified the defendant as the shooter. When the defendant was arrested, he had a gun which later tests revealed matched the ballistics evidence collected at the scene of the shooting. After a jury trial, the defendant was convicted

98 N.Y.S.3d 316

of attempted murder in the second degree (two counts), assault in the first degree (two counts), criminal possession of a weapon in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the third degree, and resisting arrest.

The defendant contends that his convictions were against the weight of the evidence. 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, 348, 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. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record, we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d at 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Spratley, 159 A.D.3d 725, 731, 71 N.Y.S.3d 582 ; People v. Jones, 139 A.D.3d 878, 31 N.Y.S.3d 191 ).

We agree with the Supreme Court's determination allowing the admission of a recording of a call to the 911 emergency number made by the father of the then–15–year–old victim. The record established that the declarant made the call within seconds of the shooting after his son cried out that he had been shot, and the father saw his neighbor, who was also shot and who the father thought was dying, fall to the ground in a pool of blood. Although the declarant's statements to the 911 operator were hearsay, they were nevertheless admissible under the exception for excited utterances " ‘made contemporaneously or immediately after a startling event’ " ( People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877, quoting People v. Edwards, 47 N.Y.2d 493, 496–497, 419 N.Y.S.2d 45, 392 N.E.2d 1229 ; see People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272 ) or present sense impressions made while he was "perceiving the event as it is unfolding or immediately afterward" which are "corroborated by independent evidence establishing [their] reliability" ( People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ; see People v. Jones, 28 N.Y.3d 1037, 1038, 42 N.Y.S.3d 669, 65 N.E.3d 699 ). Accordingly, we agree with the court's determination that the recording was admissible as an excited utterance and/or a present

171 A.D.3d 1104

sense impression (see People v. Martinez, 164 A.D.3d 1260, 1263, 83 N.Y.S.3d 677 ; People v. Wisdom, 164 A.D.3d 928, 930–931, 82 N.Y.S.3d 97 ; People v. Barnett, 163 A.D.3d 700, 703, 80 N.Y.S.3d 461 ).

The defendant contends that the late disclosure of a recording of a 911 call made by an unidentified female declarant constituted a Brady violation (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ), and that the Supreme Court should have admitted the phone call into evidence. These contentions are without merit. " ‘To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material’ " ( People v. Hayes, 17 N.Y.3d 46, 50, 926 N.Y.S.2d 382, 950 N.E.2d 118, quoting People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ; see People v. Spruill, 164 A.D.3d 1270, 82 N.Y.S.3d 520 ). The recording of the 911 call made by the unidentified female declarant was disclosed to defense counsel 12 days before the court began taking testimony and, in

98 N.Y.S.3d 317

any event, the contents of the call were inadmissible hearsay, as there was no evidence that the declarant personally observed the incident (see People v. Cummings, 31 N.Y.3d at 209, 75 N.Y.S.3d 484, 99 N.E.3d 877 ). Accordingly, the defendant cannot establish either that the People suppressed the evidence or that, even if it was suppressed, that suppression resulted in any prejudice to him.

The defendant's contention that he was not permitted to present evidence and argument at the Sandoval hearing (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) is unpreserved for appellate review and, in any event, is not supported by the record (see People v. Jackson, 29 N.Y.3d 18, 22, 52 N.Y.S.3d 63, 74 N.E.3d 302 ; People v. Barnett, 163 A.D.3d 700, 701–702, 80 N.Y.S.3d 461 ). Moreover, the Sandoval compromise adopted by the Supreme Court was not improper (see People v. Jackson, 29 N.Y.3d at 21, 23, 52 N.Y.S.3d 63, 74 N.E.3d 302 ; People v. Smith, 18 N.Y.3d 588, 597–598, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Ragland, 136 A.D.3d 845, 24 N.Y.S.3d 529 ).

To the extent that the Supreme Court should not have allowed the father of the 15–year–old victim to testify that, at the time of the shooting, he and his son were waiting for a taxi to take them to inform other family members of the death of their father/grandfather, on the ground that this information would tend to evoke sympathy from the jury, that prejudice was either dispelled by the court's instructions to the jury or was harmless in light of the overwhelming evidence of the defendant's guilt and the absence of any significant probability that any error contributed to his conviction (see People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123 ; People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

171 A.D.3d 1105

The defendant's contention that he was deprived of a fair trial due to improper remarks made by the prosecutor during summation is partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Wisdom, 164 A.D.3d at 930, 82 N.Y.S.3d 97 ; People v. Herrera, 161 A.D.3d 1006, 77 N.Y.S.3d 510 ; People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589 ). In any event, to the extent that some of the challenged remarks were improper, those remarks did not deprive the defendant of a...

To continue reading

Request your trial
6 cases
  • People v. Castro
    • United States
    • New York Supreme Court — Appellate Division
    • June 30, 2022
    ... ... Smith, 171 A.D.3d 1102, 11051106, 98 N.Y.S.3d 313 [2019], lv denied 33 N.Y.3d 1073, 105 N.Y.S.3d 31, 129 N.E.3d 351 [2019] ; People v. Guzy, 167 A.D.3d 1230, 12371238, 89 N.Y.S.3d 783 [2018], lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 162, 123 N.E.3d 821 [2019] ). Finally, although County Court imposed the ... ...
  • People v. Alisuarez
    • United States
    • New York Supreme Court — Appellate Division
    • September 16, 2020
    ... ... Since there is no indication that the People suppressed that evidence or that earlier disclosure might have had any effect on the outcome of the trial, the defendant failed to establish a Brady violation (see id. ; 128 N.Y.S.3d 881 People v. Smith, 171 A.D.3d 1102, 1104, 98 N.Y.S.3d 313 ). Further, there is no indication that the People suppressed either a witness's statement regarding his description of a vehicle or a witness's cooperation agreement, and the defendant was afforded a meaningful opportunity to use such evidence at trial (see ... ...
  • People v. Smith
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 2019
  • BAC Home Loans Servicing, L.P. v. Bertram
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 2019
    ...on an unanswered complaint or counterclaim may be excused if ‘sufficient cause is shown why the complaint should not be dismissed’ " ( 98 N.Y.S.3d 313 Giglio v. NTIMP, Inc., 86 A.D.3d 301, 308, 926 N.Y.S.2d 546, quoting CPLR 3215[c] ). "This Court has interpreted this language as requiring ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT