People v. Upson

• Decision Date: 02 September 2020
• Docket Number: Ind. No. 4880/14,2016–05590
• Citation: 127 N.Y.S.3d 884 (Mem),186 A.D.3d 1270
• Parties: The PEOPLE, etc., Respondent, v. Shaquille UPSON, Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1270

127 N.Y.S.3d 884 (Mem)

The PEOPLE, etc., Respondent,

v.Shaquille UPSON, Appellant.

2016–05590

Ind. No. 4880/14

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

Argued—February 27, 2020

September 2, 2020

Paul Skip Laisure, New York, N.Y. (Caitlin Halpern of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Denise Pavlides of counsel), for respondent.

REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny Chun, J.), rendered April 20, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's challenges to various remarks made by the prosecutor during the opening and summation are partially unpreserved for appellate review, as the defendant largely failed to object to the challenged remarks (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. Thomas, 143 A.D.3d 1006, 40 N.Y.S.3d 462 ; People v. Yusuf, 119 A.D.3d 619, 987 N.Y.S.2d 899 ; People v. Jeudy, 115 A.D.3d 982, 983, 982 N.Y.S.2d 773 ). In any event, the challenged remarks were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to defense counsel's summation, or otherwise not improper (see People v. Bridges, 114 A.D.3d 960, 980 N.Y.S.2d 820 ; People v. Wingfield, 113 A.D.3d 798, 799, 978 N.Y.S.2d 872 ; People v. Hawley, 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ).

We agree with the Supreme Court's determination admitting into evidence photographs taken by the police at the scene of the shooting (see People v. Carranza, 306 A.D.2d 351, 352, 760 N.Y.S.2d 667, affd 3 N.Y.3d 729, 786 N.Y.S.2d 381, 819 N.E.2d 997 ). The photographs served to illustrate and corroborate witness testimony as to the defendant's proximity to the victim at the time of the shooting, and the number of shots fired. As the manner of death and intent were material issues in the case, the photographs were properly admitted (see People v. Pobliner, 32 N.Y.2d 356, 369–370, 345 N.Y.S.2d 482, 298 N.E.2d 637 ; People v. Wells, 161 A.D.3d 1200, 77 N.Y.S.3d 668 ; People v. Morin, 146 A.D.3d 901, 902, 45 N.Y.S.3d 512 ; People v. Stover, 36 A.D.3d 837, 838, 831 N.Y.S.2d 183 ).

We disagree, however, with the Supreme Court's determination admitting into evidence certain content from various social media accounts (see People v. Wells, 161 A.D.3d at 1200, 77 N.Y.S.3d 668 ). The People failed to present sufficient evidence that the subject social media accounts belonged to the defendant, that the photographs on the accounts were accurate and authentic, or that the statements found on one of the accounts were made by the defendant (see People v. Price, 29 N.Y.3d 472, 479–480, 58 N.Y.S.3d 259, 80 N.E.3d 1005 ; cf. People v. Franzese, 154 A.D.3d 706, 707 61 N.Y.S.3d 661 ). Nevertheless, the admission of such evidence was harmless as the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the error contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The defendant's contention that the prosecutor's impeachment of his own witness was improper and in violation of CPL 60.35 is unpreserved for appellate review (see CPL 470.05[2] ). In any event, any error was harmless as the evidence of the defendant's guilt was overwhelming, and...