ALMEIDA, DENYS, PEOPLE v ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    343
    KA 11-02364
    PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    DENYS ALMEIDA, DEFENDANT-APPELLANT.
    FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Onondaga County Court (Joseph E.
    Fahey, J.), rendered November 3, 2011. The judgment convicted
    defendant, upon a jury verdict, of murder in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him,
    upon a jury verdict, of murder in the second degree (Penal Law §
    125.25 [1]). We reject defendant’s contention that the People’s
    failure to introduce the exculpatory portions of defendant’s statement
    to the police and to charge the grand jury with the defense of
    justification rendered the grand jury proceedings defective. The
    People have broad discretion in presenting their case to the grand
    jury and were not required to present all of their evidence tending to
    exculpate defendant (see People v Mitchell, 82 NY2d 509, 515). With
    respect to the defense of justification, we conclude that the evidence
    before the grand jury was not sufficient to require the People to
    charge that defense (see id. at 514-515).
    We reject defendant’s further contention that County Court erred
    in failing to grant his request to instruct the trial jury on the
    defense of extreme emotional disturbance. Defendant did not offer any
    psychiatric testimony or any other proof that he suffered from a
    mental infirmity, not rising to the level of insanity, at the time of
    the incident. Thus, there was an insufficient offer of proof by
    defendant in support of a defense of extreme emotional disturbance
    (see People v Smith, 1 NY3d 610, 612).
    Defendant’s contention that the court erred when it limited the
    cross-examination of a witness regarding her prior bad conduct toward
    defendant is without merit. The court has broad discretion to keep
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    KA 11-02364
    proceedings within manageable limits and to curtail exploration of
    collateral matters (see People v Hudy, 73 NY2d 40, 56) and, here, we
    conclude that the court properly exercised its discretion.
    Defendant also contends that comments made by the prosecutor
    during summation and the court’s admission in evidence of the
    recording of a 911 call denied him a fair trial. We reject that
    contention. Initially, we note that all but one of the alleged
    instances of prosecutorial misconduct during summation were not
    preserved for this Court’s review (see CPL 470.05 [2]; People v Smith,
    32 AD3d 1291, 1292, lv denied 8 NY3d 849), and we decline to exercise
    our power to review them as a matter of discretion in the interest of
    justice (see CPL 470.15 [6] [a]). Even assuming, arguendo, that the
    remaining alleged instance of prosecutorial misconduct was improper,
    we conclude that it did not cause such substantial prejudice to
    defendant that he was denied due process of law (see People v
    Santiago, 289 AD2d 1070, 1071, lv denied 97 NY2d 761). We further
    conclude that the admission in evidence of the recording of the 911
    call was harmless error because “the ‘proof of [defendant’s] guilt was
    overwhelming . . . and . . . there was no significant probability that
    the jury would have acquitted [him] had the proscribed evidence not
    been introduced’ ” (People v Spencer, 96 AD3d 1552, 1553, lv denied 19
    NY3d 1029, reconsideration denied 20 NY3d 989, quoting People v Kello,
    96 NY2d 740, 744; see generally People v Crimmins, 36 NY2d 230,
    241-242).
    Viewing the evidence in light of the elements of the crime as
    charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
    reject defendant’s further contention that the jury failed to give the
    evidence the weight it should be accorded when it determined that he
    intended to cause the victim’s death, and when it rejected his defense
    of justification (see People v Morgan, 207 AD2d 501, 501-502, affd 87
    NY2d 878; People v Fernandez, 304 AD2d 504, 504-505, lv denied 100
    NY2d 620; see generally People v Bleakley, 69 NY2d 490, 495). There
    was testimony that the victim sustained 33 stab wounds, several of
    which were in the chest and back. “ ‘[D]efendant’s homicidal intent
    could be inferred from evidence that defendant plunged a knife deep
    into the victim’s chest [multiple times], in the direction and close
    vicinity of vital organs’ ” (People v Massey, 61 AD3d 1433, 1434, lv
    denied 13 NY3d 746; see People v Elston, 118 AD3d 538, 539, lv denied
    24 NY3d 960; People v Fils-Amie, 291 AD2d 358, 358-359, lv denied 98
    NY2d 650). Furthermore, even if it was unclear who grabbed the knife
    first, “[d]efendant ended up with the knife and inflicted severe
    injuries on the [victim], while defendant remained virtually
    uninjured” with cuts to hands and fingers only (Fernandez, 304 AD2d at
    505). There was also evidence that the victim attempted to escape
    from defendant, but that defendant followed him and continued to stab
    him. Thus, the jury’s rejection of the justification defense was not
    contrary to the weight of the evidence (see id. at 504-505; see also
    Morgan, 207 AD2d at 501-502). Finally, we reject defendant’s
    -3-                             343
    KA 11-02364
    contention that his sentence is unduly harsh and severe.
    Entered:   May 8, 2015                          Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-02364

Filed Date: 5/8/2015

Precedential Status: Precedential

Modified Date: 10/7/2016