People v. Wrotten

• Decision Date: 27 May 2010
• Citation: 73 A.D.3d 637,901 N.Y.S.2d 265,2010 N.Y. Slip Op. 04501
• Parties: The PEOPLE of the State of New York, Respondent,v.Juwanna WROTTEN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 637
901 N.Y.S.2d 265
2010 N.Y. Slip Op. 04501

The PEOPLE of the State of New York, Respondent,
v.
Juwanna WROTTEN, Defendant–Appellant.

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

May 27, 2010.

[901 N.Y.S.2d 265]

Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel A. Warshawsky of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), for respondent.ANDRIAS, J.P., SAXE, FRIEDMAN, SWEENY, McGUIRE, JJ.

[73 A.D.3d 637] Upon remittitur from the Court of Appeals (14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [2009] ) for consideration of the facts and issues raised on the appeal but not yet determined, judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered November 23, 2004, convicting defendant, after a jury trial, of assault in the second degree, and sentencing her to a term of 5 years, affirmed.

At the conclusion of the evidentiary hearing, Supreme Court expressly found “by clear and convincing evidence that [the complainant] is unavailable to travel to New York without seriously endangering his health.” Supreme Court went on to find that the complainant “would be in serious danger of suffering serious health problems or possibly death by his traveling and testifying.” On our review of the facts, we conclude that [73 A.D.3d 638] Supreme Court did not err in making these findings. We recognize that the medical risk the complainant would incur by traveling can be

[901 N.Y.S.2d 266]

“serious” without being more likely than not to come to fruition. As defendant never contended that a “serious” risk was insufficient to warrant a finding that the complainant was unable to travel, we need not and do not decide whether any greater degree of risk is required. Indisputably, moreover, the complainant was a key witness. For these reasons, the use of live, two-way video was necessary to further the “ public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness” (14 N.Y.3d at 40, 896 N.Y.S.2d 711, 923 N.E.2d 1099).

The court properly declined to deliver a justification charge to the jury, because no reasonable view of the evidence, viewed in a light most favorable to defendant, supported such a charge ( see People v. Cox, 92 N.Y.2d 1002, 1004, 684 N.Y.S.2d 473, 707 N.E.2d 428 [1998] ). In particular, there was no reasonable view of the evidence under which defendant reasonably could have believed...