People v. Wilson

• Decision Date: 09 March 2010
• Citation: 896 N.Y.S.2d 419,71 A.D.3d 799,2010 N.Y. Slip Op. 01996
• Parties: The PEOPLE, etc., respondent,v.Joseph WILSON, appellant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 799

896 N.Y.S.2d 419

2010 N.Y. Slip Op. 01996

The PEOPLE, etc., respondent,

v.Joseph WILSON, appellant.

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

March 9, 2010.

Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Oded Zaluski of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered January 17, 2007, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant preserved for appellate review his argument that the trial court erred in denying his request that he be given a copy of the deceased victim's criminal record or, alternatively, his request that the court review the record in camera to determine its admissibility ( see CPL 470.05[2]; People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243). This argument is, however, without merit.

“A criminal defendant asserting a justification defense is allowed to introduce evidence of the victim's prior acts of violence of which the defendant had knowledge, provided that the acts are reasonably related to the defense raised by the defendant” ( People v. Douglas, 29 A.D.3d 47, 51, 809 N.Y.S.2d 36; see People v. Lopez, 200 A.D.2d 767, 607 N.Y.S.2d 368). Here, the defendant failed to demonstrate that he was aware at the time of the shooting, that the decedent previously had been arrested or convicted of violent crimes involving guns ( see People v. DiGuglielmo, 258 A.D.2d 591, 686 N.Y.S.2d 443; see also People v. Santiago, 211 A.D.2d 734, 622 N.Y.S.2d 70; People v. Patterson, 184 A.D.2d 916, 919–920, 584 N.Y.S.2d 954). Accordingly, the trial court did not err in denying the defendant's request.

The trial court erred in admitting a photograph of the decedent into evidence since his identity was not at issue ( see People v. Stevens, 76 N.Y.2d 833, 836, 560 N.Y.S.2d 119, 559 N.E.2d 1278; cf. People v. Daniels, 35 A.D.3d 495, 497, 826 N.Y.S.2d 369; see also People v. Donohue, 229 A.D.2d 396, 397–398, 645 N.Y.S.2d 60). However, the error was harmless, as there was overwhelming evidence of the defendant's guilt even if the photograph had not been admitted into evidence, and no significant probability that the error contributed to his convictions ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Thompson, 34 A.D.3d 852, 824 N.Y.S.2d 682; cf. People v. Heman, 198 A.D.2d 434, 435, 605 N.Y.S.2d 913).

The defendant's challenges to various summation remarks made by the prosecution are unpreserved for appellate review since defense counsel failed to object to these remarks at the time of trial ( see CPL 470.05[2]; People v. Clarke, 65 A.D.3d 1055, 1056, 887 N.Y.S.2d 586). In any event, all but one of the defendant's challenges are without merit, as the challenged remarks either were responsive to defense counsel's summation or constituted fair comment on the evidence ( id. at 1056, 887 N.Y.S.2d 586). Although the prosecutor's suggestion that the eyewitnesses did not come forward immediately out of fear of retribution by the defendant was improper, since there was no evidence to support this statement ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564), it did not deprive ...