People v. Hubert

194 A.D.3d 959

147 N.Y.S.3d 137

The PEOPLE, etc., respondent,

v.Delano HUBERT, appellant.

2016-12947

Ind. No. 264/16

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

Argued—March 11, 2021

May 19, 2021

Paul Skip Laisure, New York, N.Y. (A. Alexander Donn and Nao Terai of counsel), for appellant, and appellant pro se.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Alexander Fumelli of counsel), for respondent.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William E. Garnett, J.), rendered December 2, 2016, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On September 22, 2014, the defendant shot and killed 20–year–old Cesar Sanchez. After a jury trial, the defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree.

Contrary to the defendant's contention, the People's resubmission of the case to the grand jury on February 3, 2015, was timely (see CPL 210.20[6][b] ). Moreover, the People were not required to seek leave of court before resubmitting the case to the grand jury on October 3, 2016 (see CPL 210.35[5] ; People v. Cade, 74 N.Y.2d 410, 415, 548 N.Y.S.2d 137, 547 N.E.2d 339 ; People v. George, 186 A.D.3d 728, 728, 127 N.Y.S.3d 267 ).

The defendant contends that the People failed to disprove his justification defense beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see People v. Flores, 165 A.D.3d 695, 84 N.Y.S.3d 543 ; People v. Simpson, 151 A.D.3d 762, 762, 56 N.Y.S.3d 253 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the jury's rejection of the defendant's justification defense and the verdict of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The Supreme Court providently exercised its discretion in limiting defense counsel's jury voir dire on the subject of scientific evidence, as such evidence did not play a significant role in the case (see CPL 270.15[1][c] ; People v. Jean, 75 N.Y.2d 744, 551 N.Y.S.2d 889, 551 N.E.2d 90 ).

Contrary to the defendant's contentions, the Supreme Court did not deprive him of a fair trial when it discharged a juror, following a probing and tactful inquiry, as grossly unqualified (see CPL 270.35 ; People v. Holder, 150 A.D.3d 886, 887, 55 N.Y.S.3d 100 ).

The defendant's contention that the prosecutor improperly appealed to the jury's sympathy by eliciting certain testimony from the victim's mother is partially unpreserved for appellate review (see CPL 470.05[2] ). In any event, while it was improper for the prosecutor to appeal to the jury's sympathy by eliciting testimony from the victim's mother that, inter alia, the victim was her only child, with whom she stayed in the hospital while he was "dying," and that after the victim's death, she brought the victim's college acceptance letter to his grave (see People v. Holiday, 142 A.D.3d 625, 626, 36 N.Y.S.3d 520 ), the error was harmless, as there was overwhelming evidence of the defendant's guilt and no significant probability that the error contributed to his conviction (see People v. Harris, 98 N.Y.2d 452, 491, 749 N.Y.S.2d 766, 779 N.E.2d 705 ).

Furthermore, as the defendant argues, the Supreme Court erred by admitting into evidence the defendant's video-recorded interview with the police, without redacting certain statements which suggested the defendant's commission of uncharged crimes ( People v. Watson, 163 A.D.3d 855, 858–859, 81 N.Y.S.3d 449 ). In particular, during the interview, the defendant stated "I ain't never shoot nobody for no reason," to which one of the detectives laughed and stated, "you are implying you shot more than one person." Although the court...