        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

653
KA 11-00492
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

OLIVE STOUTENGER, ALSO KNOWN AS OLIVE DELANEY,
DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered January 10, 2011. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]) and criminal possession of a weapon in the third degree (§
265.02 [1]). Defendant contends that Supreme Court erred in admitting
in evidence a recorded telephone conversation between her and her
friend inasmuch as it did not fall within a recognized Molineux
exception (see People v Molineux, 168 NY 264, 293-294). Contrary to
defendant’s contention, the telephone conversation does not present a
Molineux issue. Inasmuch as the People sought to use the telephone
conversation only to challenge defendant’s credibility on rebuttal,
not to establish defendant’s guilt as part of their case-in-chief, we
conclude that the admissibility of the telephone conversation must be
analyzed pursuant to People v Buchanan (145 NY 1, 23-24).

     Under the “door-opening” rule set forth in Buchanan, otherwise
inadmissible evidence, such as the telephone conversation at issue
here, may be admitted in evidence for the purpose of rebutting a
“misleading impression” created by the defendant (People v Cordero,
110 AD3d 1468, 1470, lv denied 22 NY3d 1137; see People v Massie, 2
NY3d 179, 183-184; People v Donato, 202 AD2d 1010, 1010, lv denied 83
NY2d 871). Here, defendant was attempting to evoke the jury’s
sympathy by testifying about her remorse and anguish over the victim’s
death. Specifically, defendant testified that, upon learning of the
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                                                         KA 11-00492

victim’s death, she “started flipping out,” “bouncing my head off
walls,” “screaming,” and “going nuts.” She further testified that she
“didn’t want to live,” “refused to eat,” and was “on suicide watch.”
We conclude that the court properly permitted the People to introduce
the telephone conversation in evidence to rebut defendant’s testimony
of remorse and anguish (see Cordero, 110 AD3d at 1470; see generally
People v Whitlatch, 294 AD2d 909, 909, lv denied 98 NY2d 703).

     While we agree with defendant that the court erred in permitting
the prosecutor to question her son about an irrelevant and immaterial
fistfight between defendant and another woman (see People v Bradley,
20 NY3d 128, 134-135), we conclude that the error is harmless inasmuch
as the evidence of defendant’s guilt is overwhelming, and there is no
reasonable possibility that defendant would have been acquitted but
for the error (see People v Johnson, 155 AD2d 924, 926, lv denied 75
NY2d 920; see also People v Luka, 177 AD2d 599, 600; see generally
People v Crimmins, 36 NY2d 230, 241-242).

     Defendant contends that the court erred in conducting a colloquy
with a sworn juror outside of her presence. When defendant’s son
completed his testimony, a juror overheard him stating that he wanted
to punch “that bitch,” referring to the prosecutor. The court was
advised of the statement and then questioned the juror in the presence
of counsel but outside the presence of the other jurors to determine
what defendant’s son had said and who else might have overheard it.
The court then called the remaining jurors into the courtroom to
address the issue. At that point, the court realized that defendant
had not been present for the colloquy with the juror and counsel and
offered to conduct the colloquy again in defendant’s presence.
Defense counsel declined. Defendant’s contention is without merit
because the presence of counsel alone was sufficient (see People v
Harris, 99 NY2d 202, 212).

     Defendant’s further contention that prosecutorial misconduct
during cross-examination of defendant deprived her of a fair trial is
preserved for our review only in part, inasmuch as she failed to
object to several of the allegedly improper statements (see People v
Jones, 114 AD3d 1239, 1241). In any event, defendant’s contention
lacks merit. We conclude that “[a]ny improprieties were not so
pervasive or egregious as to deprive defendant of a fair trial” (id.
[internal quotation marks omitted]; see People v Smith, 109 AD3d 1150,
1151, lv denied 22 NY3d 1090; People v Stanley, 108 AD3d 1129, 1131,
lv denied 22 NY3d 959; People v Ward, 107 AD3d 1605, 1606-1607, lv
denied 21 NY3d 1078).

     Defendant contends in the supplemental brief submitted by
appellate counsel with leave of this Court that the court failed to
apprise her of a jury note and that such a failure constitutes a mode
of proceedings error requiring reversal of the judgment, even if
unpreserved (see People v O’Rama, 78 NY2d 270, 279-280; see also CPL
310.30). We reject defendant’s contention that preservation was not
required. Here, as in People v Arnold (107 AD3d 1526, lv denied 22
NY3d 953), “the record does not indicate that the court gave defense
counsel notice of the contents of the note outside the presence of the
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                                                         KA 11-00492

jury, but it establishes that the court read the note verbatim before
the jury, defense counsel, and defendant. Defense counsel raised no
objection” (id. at 1527). Under such circumstances, defendant was
required to preserve the alleged error by objection (see People v
Kalb, 91 AD3d 1359, 1359, lv denied 19 NY3d 963; see also People v
Anderson, 116 AD3d 499, 500). We decline to exercise our power to
address defendant’s contention as a matter of discretion in the
interest of justice (see People v Bonner, 79 AD3d 1790, 1790-1791, lv
denied 17 NY3d 792).

      Finally, the sentence is not unduly harsh or severe.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
