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

343
KA 11-02364
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DENYS ALMEIDA, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 3, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of murder in the second degree (Penal Law §
125.25 [1]). We reject defendant’s contention that the People’s
failure to introduce the exculpatory portions of defendant’s statement
to the police and to charge the grand jury with the defense of
justification rendered the grand jury proceedings defective. The
People have broad discretion in presenting their case to the grand
jury and were not required to present all of their evidence tending to
exculpate defendant (see People v Mitchell, 82 NY2d 509, 515). With
respect to the defense of justification, we conclude that the evidence
before the grand jury was not sufficient to require the People to
charge that defense (see id. at 514-515).

     We reject defendant’s further contention that County Court erred
in failing to grant his request to instruct the trial jury on the
defense of extreme emotional disturbance. Defendant did not offer any
psychiatric testimony or any other proof that he suffered from a
mental infirmity, not rising to the level of insanity, at the time of
the incident. Thus, there was an insufficient offer of proof by
defendant in support of a defense of extreme emotional disturbance
(see People v Smith, 1 NY3d 610, 612).

     Defendant’s contention that the court erred when it limited the
cross-examination of a witness regarding her prior bad conduct toward
defendant is without merit. The court has broad discretion to keep
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                                                         KA 11-02364

proceedings within manageable limits and to curtail exploration of
collateral matters (see People v Hudy, 73 NY2d 40, 56) and, here, we
conclude that the court properly exercised its discretion.

     Defendant also contends that comments made by the prosecutor
during summation and the court’s admission in evidence of the
recording of a 911 call denied him a fair trial. We reject that
contention. Initially, we note that all but one of the alleged
instances of prosecutorial misconduct during summation were not
preserved for this Court’s review (see CPL 470.05 [2]; People v Smith,
32 AD3d 1291, 1292, lv denied 8 NY3d 849), and we decline to exercise
our power to review them as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Even assuming, arguendo, that the
remaining alleged instance of prosecutorial misconduct was improper,
we conclude that it did not cause such substantial prejudice to
defendant that he was denied due process of law (see People v
Santiago, 289 AD2d 1070, 1071, lv denied 97 NY2d 761). We further
conclude that the admission in evidence of the recording of the 911
call was harmless error because “the ‘proof of [defendant’s] guilt was
overwhelming . . . and . . . there was no significant probability that
the jury would have acquitted [him] had the proscribed evidence not
been introduced’ ” (People v Spencer, 96 AD3d 1552, 1553, lv denied 19
NY3d 1029, reconsideration denied 20 NY3d 989, quoting People v Kello,
96 NY2d 740, 744; see generally People v Crimmins, 36 NY2d 230,
241-242).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s further contention that the jury failed to give the
evidence the weight it should be accorded when it determined that he
intended to cause the victim’s death, and when it rejected his defense
of justification (see People v Morgan, 207 AD2d 501, 501-502, affd 87
NY2d 878; People v Fernandez, 304 AD2d 504, 504-505, lv denied 100
NY2d 620; see generally People v Bleakley, 69 NY2d 490, 495). There
was testimony that the victim sustained 33 stab wounds, several of
which were in the chest and back. “ ‘[D]efendant’s homicidal intent
could be inferred from evidence that defendant plunged a knife deep
into the victim’s chest [multiple times], in the direction and close
vicinity of vital organs’ ” (People v Massey, 61 AD3d 1433, 1434, lv
denied 13 NY3d 746; see People v Elston, 118 AD3d 538, 539, lv denied
24 NY3d 960; People v Fils-Amie, 291 AD2d 358, 358-359, lv denied 98
NY2d 650). Furthermore, even if it was unclear who grabbed the knife
first, “[d]efendant ended up with the knife and inflicted severe
injuries on the [victim], while defendant remained virtually
uninjured” with cuts to hands and fingers only (Fernandez, 304 AD2d at
505). There was also evidence that the victim attempted to escape
from defendant, but that defendant followed him and continued to stab
him. Thus, the jury’s rejection of the justification defense was not
contrary to the weight of the evidence (see id. at 504-505; see also
Morgan, 207 AD2d at 501-502). Finally, we reject defendant’s
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                                                           KA 11-02364

contention that his sentence is unduly harsh and severe.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
