People v. Portious

201 A.D.3d 820

160 N.Y.S.3d 103

The PEOPLE, etc., respondent,

v.Kirk PORTIOUS, appellant.

2017–08039

Ind. No. 5002/13

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

Argued—November 15, 2021

January 19, 2022

Patricia Pazner, New York, NY (Jenin Younes and Erica Horwitz of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Andrew S. Durham of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Jon Firetog, J.), rendered June 29, 2017, as amended July 21, 2017, convicting him of murder in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant was convicted, after a jury trial, of murder in the first degree and criminal possession of a weapon in the second degree, for fatally shooting the estranged husband of the codefendant Alishia Noel who, along with her paramour, the codefendant Dameon Lovell, had hired the defendant to kill the victim in exchange for a sum of money as part of a murder-for-hire/contract-killing plot. The defendant appeals. We affirm.

Contrary to the defendant's contention, his Batson challenge during jury selection (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) was properly denied. As a threshold matter, since the prosecutor offered race-neutral reasons for her peremptory challenges and the Supreme Court ruled on the ultimate issue of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes academic (see Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 ). Moreover, under the particular facts of this case, the court's determination that the race-neutral reasons offered by the prosecutor were not pretextual is supported by the record (see People v. Ousmane, 183 A.D.3d 762, 762, 121 N.Y.S.3d 887 ).

The defendant contends that the Supreme Court improperly excluded from evidence the recording of Noel's February 24, 2013 call to the 911 emergency number. Specifically, the defendant contends that the recording fell within either the excited utterance exception or the present sense impression exception to the hearsay rule. This contention is without merit. "A spontaneous declaration or excited utterance—made contemporaneously or immediately after a startling event—which asserts the circumstances of that occasion as observed by the declarant is an exception to the prohibition on hearsay" ( People v. Almonte, 33 N.Y.3d 1083, 1084, 106 N.Y.S.3d 277, 130 N.E.3d 873 [internal quotation marks omitted]). "[E]xcited utterances may be admissible because, ‘as the impulsive and unreflecting responses of the declarant to the injury or other startling event, they possess a high degree of trustworthiness, and, as thus expressing the real tenor of said declarant's belief as to the facts just observed by him [or her], may be received as testimony of those facts' " ( People v. Cummings, 31 N.Y.3d 204, 209, 75 N.Y.S.3d 484, 99 N.E.3d 877, quoting People v. Caviness, 38 N.Y.2d 227, 231, 379 N.Y.S.2d 695, 342 N.E.2d 496 ; see People v. Morris, 189 A.D.3d 1077, 1079, 136 N.Y.S.3d 25 ). "Present sense impression declarations ... are descriptions of events made by a person who is perceiving the event as it is unfolding" ( People v. Morris, 189 A.D.3d at 1079, 136 N.Y.S.3d 25 [internal quotation marks omitted]). Contrary to the defendant's contention, the court properly determined that the 911 call recording, which was made after the defendant shot and killed Noel's husband, did not have any of the indicia of an excited utterance (see id. ). The defendant failed to demonstrate that the 911 call was not the product of studied reflection and deliberation (see id. at 1079–1080, 136 N.Y.S.3d 25 ). Likewise, the declarations made by Noel during the 911 call were not admissible under the present sense impression exception to the hearsay rule since the defendant did not satisfy the element of contemporaneity (see People v. Crudup, 197 A.D.3d 656, 153 N.Y.S.3d 114 ; People v. Morris, 189 A.D.3d at 1080, 136 N.Y.S.3d 25 ). The defendant's further contention that the exclusion of the 911 call recording violated his right under the Sixth Amendment to the United States Constitution to present a defense is unpreserved for appellate review and, in any event, without merit.

The defendant further contends that the Supreme Court erred by failing to submit a jury instruction for an accomplice as a matter of law pursuant to CPL 60.22 with respect to Lovell, who testified against the defendant at trial pursuant to a cooperation agreement with the People. This contention is unpreserved for appellate review because the defendant did not request an accomplice corroboration jury instruction pursuant to CPL 60.22, and he did not object to the final charge as given for failing to include the instruction (see CPL 470.05[2] ; People v. Darby, 196 A.D.3d 643, 148 N.Y.S.3d 380 ). In any event, while the court should have instructed the jury that the subject witness was an accomplice as a matter of law (see CPL 60.22 ; People v. Montello, 197 A.D.3d 575, 152 N.Y.S.3d 701 ), the error was harmless because the evidence of the defendant's guilt was overwhelming, and there was no significant probability that the error affected the verdict (see People v. Crimmins, 38 N.Y.2d 407, 381 N.Y.S.2d 1, 343 N.E.2d 719 ; People v. Montello, 197 A.D.3d 575, 152 N.Y.S.3d 701 ). The defendant failed to establish the absence of a strategic reason for defense counsel not requesting an accomplice charge pursuant to CPL 60.22 and, therefore, contrary to the defendant's contention, defense counsel was not ineffective in failing to request one (see People v. Thorpe, 141 A.D.3d 927, 35 N.Y.S.3d 769 ; People...