Submitted - November 9, 2017
D. Townsend, Walden, NY, for appellant, and appellant pro se.
M. Hoovler, District Attorney, Goshen, NY (Robert H.
Middlemiss of counsel), for respondent.
C. DILLON, J.P. COLLEEN D. DUFFY FRANCESCA E. CONNOLLY LINDA
DECISION & ORDER
by the defendant from a judgment of the County Court, Orange
County (Jeffrey G. Berry, J.), rendered May 22, 2014,
convicting him of murder in the second degree, arson in the
second degree, criminal possession of a weapon in the third
degree (two counts), and cruelty to animals, upon a jury
verdict, and imposing sentence.
that the judgment is affirmed.
the evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620, 621), we find
that it was legally sufficient to establish the
defendant's guilt beyond a reasonable doubt. Moreover, in
fulfilling our responsibility to conduct an independent
review of the weight of the evidence (see CPL 470.15;
People v Danielson, 9 N.Y.3d 342), we nevertheless
accord great deference to the jury's opportunity to view
the witnesses, hear the testimony, and observe demeanor (see
People v Mateo, 2 N.Y.3d 383, 410; People v
Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record
here, we are satisfied that the verdict of guilt was not
against the weight of the evidence (see People v
Romero, 7 N.Y.3d 633). Moreover, the defendant waived
any contention that the verdict is repugnant or inconsistent,
since his counsel consented to not having the matter
resubmitted to the jury (see People v Bess, 142
A.D.3d 1098, 1099; People v Williams, 81 A.D.3d 861;
People v Cervantes, 242 A.D.2d 730, 731; see
also People v Maldonado, 11 A.D.3d 114, 117).
County Court providently exercised its discretion in
qualifying an individual to testify as an expert in the field
of forensic document analysis based on his formal training
and experience (see People v Battease, 124 A.D.2d
807, 809; People v Donaldson, 107 A.D.2d 758, 759).
Moreover, the lack of a license or certification does not, in
and of itself, disqualify a witness from testifying as an
expert (see Steinbuch v Stern, 2 A.D.3d 709, 710).
County Court should not have admitted into evidence a photo
of the victim taken while she was still alive, as her
appearance or identity was not relevant to a material issue
at trial (see People v Thompson, 34 A.D.3d 852;
People v Rodriguez, 1 A.D.3d 386, 387). However,
this error was harmless (see People v Stevens, 76
N.Y.2d 833, 836; People v Crimmins, 36 N.Y.2d 230).
the defendant's contention that the County Court erred in
permitting the prosecution to elicit hearsay testimony from
two witnesses relating to the defendant's motive is
unpreserved for appellate review. In any event, this
testimony was admissible under the "state-of-mind"
exception to the hearsay rule (see People v Leath,
98 A.D.3d 690, 691; People v Damon, 78 A.D.3d 860;
People v Jean-Baptiste, 51 A.D.3d 1037, 1038).
defendant's contention that certain remarks made by the
prosecutor during his summation were prejudicial and should
have resulted in a mistrial is unpreserved for appellate
review (see CPL 470.05; People v Rivera, 130
A.D.3d 655, 656). In any event, the challenged remarks were
either within the broad bounds of rhetorical comment
permissible in closing arguments, were fair response to
arguments made by defense counsel in summation, or were fair
comment on the evidence (see People v Halm, 81
N.Y.2d 819, 821; People v Galloway, 54 N.Y.2d 396,
399-401), or were harmless (see People v Crimmins,
36 N.Y.2d at 241-242; People v Mairena, 150 A.D.3d
1267; People v Hill, 286 A.D.2d 777, 778).
sentence imposed was not excessive (see People v