Anthony M. Grandinette, Mineola, NY (Mirel Fisch of counsel),
Madeline Singas, District Attorney, Mineola, NY (Donald Berk
and John B. Latella of counsel), for respondent.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Nassau
County (Grella, J.), rendered June 2, 2014, convicting him of
murder in the second degree, assault in the first degree, and
criminal possession of a weapon in the second degree (two
counts), upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
defendant was charged with murder in the second degree,
assault in the first degree, and related weapons offenses,
arising out of an altercation in which he fatally shot
Christopher Mullings and shot and injured Sandra Clarke. At
trial, the defendant asserted a justification defense. A
video recording of the encounter was admitted into evidence
and played for the jury, and was submitted to the jury, upon
its request, on both days of its deliberations. The defendant
was convicted on all counts.
defendant contends that he was denied his rights to
confrontation and cross- examination and was deprived of a
fair trial by the submission of the video to the jury with a
video player which caused defects in the audio, and that a
mistrial should have been granted or a requested curative
instruction given. Preliminarily, the defendant's
constitutional contentions are not preserved for appellate
review since he did not raise them before the Supreme Court
(see CPL 470.05; People v Lane, 7 N.Y.3d
888, 889). In any event, they are without merit, and the
court providently exercised its discretion in denying the
defendant's motions for a mistrial or a curative
instruction (see People v Smith, 143 A.D.3d 1005).
The defendant's contention that the video player
submitted to the jury on its first day of deliberations
caused the video to skip when viewed by the jury is
speculative. While there had been some issues with the video
player during the prosecutor's summation, the jury had
seen the video play properly numerous times during the trial,
and did not indicate to the court that the video was skipping
when played during deliberations (see People v
Rojas, 133 A.D.3d 543). In any event, even assuming that
there were issues with the video player during the first day
of deliberations, any prejudice was ameliorated during the
second day of deliberations when the video was submitted to
the jury with a video player which the parties agreed was
properly functioning (see People v Young, 48 N.Y.2d
995, 996; People v Johnson, 139 A.D.3d 967, 975,
lv granted 28 N.Y.3d 939). Further, in the absence
of evidence that any problems with the video player occurred
during the first day of deliberations, the requested curative
instruction notifying the jury of the presumed problem was
unnecessary and may have only served to confuse the jury
(see People v Knapp, 113 A.D.2d 154, 166).
defendant's contention that he was deprived of a fair
trial by the prosecutor's misstatement, during summation,
of the law concerning an initial aggressor is without merit.
The comment could not have been interpreted by the jury as an
instruction on the law because the Supreme Court reminded the
jury that it would define the law and subsequently gave a
correct instruction on the law (see People v Cephas,
91 A.D.3d 668, 669; People v Torres, 90 A.D.3d 420;
People v Giuca, 58 A.D.3d 750). Thus, the defendant
was not prejudiced by the comment. The defendant's
remaining challenges to comments made by the prosecutor
during summation are not preserved for appellate review
(see CPL 470.05; People v Romero, 7
N.Y.3d 911). In any event, most of the challenged remarks
were fair comment on the evidence (see People v
Ashwal, 39 N.Y.2d 105, 109-110). Although certain of the
challenged comments were improper (see People v
Gordon, 50 A.D.3d 821; People v Pagan, 2 A.D.3d
879; People v Torres, 111 A.D.2d 885), they were not
so egregious as to deprive the defendant of a fair trial
(see People v Alphonso, 144 A.D.3d 1168; People
v Ward, 106 A.D.3d 842).
Supreme Court properly declined to charge the jury with the
defendant's requested instruction on prior threats, which
marshaled the evidence (see CPL 300.10;
People v Saunders, 64 N.Y.2d 665; People v
Moore, 92 A.D.3d 575, 576; People v Correa, 73
A.D.3d 942; People v Campbell, 68 A.D.3d 890). While
it would have been appropriate for the court to instruct the
jury in accordance with the "evidence of threats"
addition to the justification charge contained in the
Criminal Jury Instructions (CJI2d[NY] Justification: Use of
Deadly Physical Force in Defense of a Person), any error in
failing to do so was harmless, as there was overwhelming
evidence disproving the defendant's justification defense
and no significant probability that the lack of the
instruction contributed to the defendant's convictions
(see People v Petty, 7 N.Y.3d 277, 286; People v
Crimmins, 36 N.Y.2d 230, 241-242).
our independent review pursuant to CPL 470.15(5), we are
satisfied that the verdict of guilt was not against the
weight of the ...