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

737
KA 13-01688
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

EMILIER CARRASQUILLO-FUENTES, DEFENDANT-APPELLANT.


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

EMILIER CARRASQUILLO-FUENTES, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered June 24, 2013. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
assault in the first degree and criminal possession of a weapon 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]), assault in the first degree (§ 120.10 [1]), and criminal
possession of a weapon in the second degree (§ 265.03 [3]). This
prosecution arose from an incident in which several gang members,
including defendant and two codefendants, allegedly acting on orders
from the gang’s leader, fired a fusillade of bullets at a member of a
rival gang in a gas station parking lot, killing him and injuring
another person. Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention in his main brief that the
verdict is contrary to the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). Defendant’s contention is based
solely on his challenge to the credibility of the witnesses, and we
conclude that their testimony “was not so inconsistent or unbelievable
as to render it incredible as a matter of law” (People v Black, 38
AD3d 1283, 1285, lv denied 8 NY3d 982). “[R]esolution of issues of
credibility, as well as the weight to be accorded to the evidence
presented, are primarily questions to be determined by the jury”
(People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]), and we see no reason to disturb
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                                                         KA 13-01688

the jury’s credibility determinations here.

     We reject defendant’s further contention in his main brief that
the identification procedures used by the police, i.e., photo arrays
by which he was identified as one of the perpetrators of the crime,
were unduly suggestive. “A photo array is unduly suggestive where
some characteristic of one picture draws the viewer’s attention to it,
indicating that the police have made a particular selection” (People v
Smiley, 49 AD3d 1299, 1300, lv denied 10 NY3d 870 [internal quotation
marks omitted]; see People v Robert, 184 AD2d 597, 598, lv denied 80
NY2d 929). Contrary to defendant’s contention, “the differences in
skin tone and head size of the individuals depicted in the photo array
were not so great as to indicate that the police were urging a
particular selection” (Smiley, 49 AD3d at 1300). Consequently, County
Court properly concluded that “[t]he composition and presentation of
the photo array[s] were such that there was no reasonable possibility
that the attention of the witness[es] would be drawn to defendant as
the suspect chosen by the police” (People v Sylvester, 32 AD3d 1226,
1227, lv denied 7 NY3d 929; see generally People v Chipp, 75 NY2d 327,
335-336, cert denied 498 US 833).

     The court properly admitted in evidence a recording of a 911
emergency call from a woman who indicated that she had observed the
perpetrators leaving the scene of the shooting. Contrary to
defendant’s contention in his pro se supplemental brief, the court
properly admitted the recording as an excited utterance. The People
established that the call was “ ‘made under the immediate and
uncontrolled domination of the senses, and during the brief period
when considerations of self-interest could not have been brought fully
to bear by reasoned reflection’ ” (People v Johnson, 1 NY3d 302, 306,
quoting People v Marks, 6 NY2d 67, 71). Contrary to defendant’s
further contention in his pro se supplemental brief, the People were
not required to establish the woman’s unavailability as a witness at
trial inasmuch as “unavailability of the declarant is not a
prerequisite to the admission of statements deemed to be excited
utterances” (People v Johnson, 272 AD2d 555, 555, lv denied 95 NY2d
854; see People v Buie, 86 NY2d 501, 506).

     In his main brief, defendant contends that the admission in
evidence of the 911 emergency call violated his right to confront the
witnesses against him because it contained testimonial evidence from a
nontestifying witness. We reject that contention. It is well settled
that “[s]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution” (Davis v Washington, 547 US 813, 822). Here, we agree
with the court’s conclusion that the information in the recording was
nontestimonial because the questions asked by the 911 operator, and
the responses thereto, were designed to allow the police to respond to
the shooting (see People v Dockery, 107 AD3d 913, 914, lv denied 22
                                 -3-                           737
                                                         KA 13-01688

NY3d 955), and to apprehend and “prevent further harm by the
perpetrator[s], who at that point, [were] still at large and armed”
(People v Legere, 81 AD3d 746, 750; see People v Shaver, 86 AD3d 800,
802, lv denied 18 NY3d 962, reconsideration denied 19 NY3d 967).

     Defendant did not object to any of the alleged instances of
prosecutorial misconduct during the prosecutor’s opening statement or
summation, and thus he failed to preserve for our review his further
contention in his main brief that he was thereby deprived of a fair
trial (see People v Lane, 106 AD3d 1478, 1480, lv denied 21 NY3d 1043;
People v Rumph, 93 AD3d 1346, 1347, lv denied 19 NY3d 967). In any
event, we reject defendant’s contention. We note that “the
prosecutor’s closing statement must be evaluated in light of the
defense summation, which put into issue the [witnesses’] character and
credibility and justified the People’s response” (People v Halm, 81
NY2d 819, 821) and, here, we conclude that the prosecutor’s comments
at issue on summation were “a fair response to defense counsel’s
summation and did not exceed the bounds of legitimate advocacy”
(People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see
generally Halm, 81 NY2d at 821). We further conclude that any of the
prosecutor’s further comments during the opening or closing statements
that may have exceeded the bounds of propriety “ ‘were not so
pervasive or egregious as to deprive defendant of a fair trial’ ”
(People v Jackson, 108 AD3d 1079, 1080, lv denied 22 NY3d 997; see
People v Miller, 104 AD3d 1223, 1224, lv denied 21 NY3d 1017; People v
Scott, 60 AD3d 1483, 1484, lv denied 12 NY3d 859).

     Defendant contends in his pro se supplemental and pro se reply
briefs that the court failed to include all of the testimony that the
jury requested in a readback. That contention is not preserved for
our review inasmuch as defendant did not object to the court’s
response to the request. Contrary to defendant’s contention, any
error that may have occurred “does not constitute a mode of
proceedings error for which no preservation is required . . . Counsel
had meaningful notice of the precise content of the jury’s note and
was in the courtroom as the readback was conducted. Counsel was
therefore aware [of whether the court] failed to read [all of the
testimony that the jury requested]. Counsel’s knowledge of the
precise content of the note and of the court’s actual response, or
lack thereof, removes the claimed error from the very narrow class of
mode of proceedings errors for which preservation is not required”
(People v Morris, 27 NY3d 1096, 1099). We decline to exercise our
power to review defendant’s contention as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]).

     Contrary to defendant’s additional contention in his pro se
supplemental and pro se reply briefs, the People did not commit a
Brady violation with respect to one of the bullets recovered from the
body of the deceased victim, i.e., the bullet found in the victim’s
shoulder. Within one day of receiving information indicating that the
victim did not sustain that bullet wound in this incident, the People
provided that information to the defense. Thus, defendant failed to
establish that “the evidence was suppressed by the prosecution” as
required to establish a Brady violation (People v Fuentes, 12 NY3d
                                 -4-                           737
                                                         KA 13-01688

259, 263). In any event, even assuming, arguendo, that there was a
delay in disclosing the evidence, “[i]t is well settled that ‘a
defendant’s constitutional right to a fair trial is not violated when,
as here, he is given a meaningful opportunity to use the allegedly
exculpatory material to cross-examine the People’s witnesses or as
evidence during his case’ ” (People v Vickio, 50 AD3d 1479, 1480,
quoting People v Cortijo, 70 NY2d 868, 870).

     We have considered defendant’s remaining contentions in both of
his pro se briefs and in his main brief, and we conclude that they are
without merit. Finally, we conclude that the sentence is not unduly
harsh or severe.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
