People v. Gilliam

214 N.Y.S.3d 161

The PEOPLE, etc., respondent,

v.Qwantrell J. GILLIAM, appellant.

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

Argued—March 5, 2024

July 10, 2024

Patricia Pazner, New York, NY (Cynthia Colt and Sam Feldman of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Jonathan E. Maseng of counsel), for respondent.

ANGELA G. IANNACCI, J.P., PAUL WOOTEN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered April 3, 2019, convicting him of murder in the second degree, tampering with physical evidence, and criminal possession of the weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

[1] The Supreme Court did not improvidently exercise its discretion in permitting the People to elicit evidence of prior incidents of domestic violence between the defendant and the victim (see People v. Frankline, 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26; People v. Molineux, 168 N.Y. 264, 61 N.E. 286). The evidence had "substantial probative value" and was directly relevant to the nonpropensity issues of motive, intent, and relevant background information to enable the jury to understand the defendant’s relationship with the victim (People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918; see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263; People v. Delacruz, 207 A.D.3d 652, 654, 171 N.Y.S.3d 575). Moreover, the probative value of the evidence outweighed the risk of prejudice to the defendant, particularly considering the court’s limiting instruction to the jury, which served to alleviate any prejudice resulting from the admission of the evidence (see People v. Branwell, 181 A.D.3d 818, 819, 118 N.Y.S.3d 427; People v. Beer, 146 A.D.3d 895, 896-897, 47 N.Y.S.3d 38).

[2, 3] Contrary to the defendant's contention, the victim’s statement that the defendant had "just" banged her head against the wall was properly admitted under the excited utterance exception to the hearsay rule since the record demonstrates that the victim made the statement while she was "still under the stress of excitement" and lacked the reflective capacity essential for fabrication (People v. Hernandez, 28 N.Y.3d 1056, 1057, 43 N.Y.S.3d 237, 65 N.E.3d 1272; see People v. Ortiz, 198 A.D.3d 924, 927, 155 N.Y.S.3d 573). Further, the victim’s statement to her friend that the defendant had "just" broken her cell phone was properly admitted under the present sense impression exception to the hearsay rule (see People v. Brown, 80 N.Y.2d 729, 732-733, 594 N.Y.S.2d 696, 610 N.E.2d 369; People v. Porter, 210 A.D.3d 1012, 1014, 179 N.Y.S.3d 147).

The defendant’s specific contentions regarding the Supreme Court’s Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) are largely unpreserved for appellate review (see CPL 470.05[2]; People v. Wynn, 208 A.D.3d 693, 694, 171 N.Y.S.3d 899). In any event, the court’s Sandoval ruling was a provident exercise of discretion, as it constituted an appropriate compromise which balanced the probative value of the proffered evidence against the prejudice to the defendant (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Dudley, 203 A.D.3d 1066, 1067, 162 N.Y.S.3d 775; People v. Ragland, 136 A.D.3d 845, 845, 24 N.Y.S.3d 529).

[4] The defendant waived his contention that the Supreme Court deprived him of his remaining peremptory challenges to select the regular jurors when he expressly consented to the parties selecting alternate jurors to replace two jurors who were discharged after the trial jury was sworn, but prior to alternate jury selection (see People v. Faulk, 185 A.D.3d 953, 956, 128 N.Y.S.3d 43; People v. Driver, 154 A.D.3d 958, 959, 64 N.Y.S.3d 222). Contrary to the defendant’s contention, the replacement of discharged jurors did not constitute a mode of proceedings error (see People v. Agramonte, 87 N.Y.2d 765, 770, 642 N.Y.S.2d 594, 665 N.E.2d 164; People v, Faulk, 185 A.D.3d at 956, 128 N.Y.S.3d 43).

The defendant’s contentions regarding certain remarks and commentary made by the prosecutor during trial are largely unpreserved for appellate review and, in any event, without merit (see CPL 470.05[2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Thomas, 200 A.D.3d 912, 914, 155 N.Y.S.3d 365)....