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

213
KA 09-02089
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EDWIN L. MULLIGAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

EDWIN L. MULLIGAN, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Brian M.
McCarthy, J.), rendered September 4, 2009. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree, assault in the first degree, criminal possession of a weapon
in the second degree (two counts), criminal possession of a weapon in
the third degree and endangering the welfare of a child.

     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, inter alia, attempted murder in the second
degree (Penal Law §§ 110.00, 125.25 [1]) and two counts of criminal
possession of a weapon in the second degree (§ 265.03 [1] [b], [3]).
During the trial, County Court admitted in evidence a 911 recording
containing several statements that were made approximately two minutes
after the shooting that resulted in the charges herein. During the
recording, a witness stated that he had found the victim after she had
been shot, and that the victim was conscious but did not know where
she had been shot. The 911 operator asked the witness who had shot
the victim, and the witness initially responded, “I guess her
boyfriend.” The witness then asked the victim to identify the
shooter, the victim responded by identifying defendant, and the
witness repeated that response to the 911 operator.

     We reject defendant’s contention that the court erred in
admitting in evidence the victim’s statements on the 911 recording
under the excited utterance exception to the hearsay rule. In
determining whether to admit such statements in evidence, “it is
necessary to review the facts of the case to consider the atmosphere
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surrounding the statements and thus determine whether they were
precipitated by the subject event” (People v Norton, 164 AD2d 343,
353, affd 79 NY2d 808). The fact “[t]hat statements were made in
response to an inquiry does not disqualify them as excited utterances
but rather is a fact to be considered by the trial court” (People v
Cotto, 92 NY2d 68, 79). Here, the evidence in the record establishes
that the victim was shot four times in front of her 14-month-old
toddler, and the statements at issue were made within minutes of that
incident. Moreover, during the medical treatment administered at the
scene shortly after the 911 call, the victim “was crying out that she
didn’t want to die.” We agree with the People that such evidence
establishes that the victim “ ‘spoke while under the stress or
influence of the excitement caused by the event, so that [her]
reflective capacity was stilled’ . . . The spontaneity of the
declaration guarantee[d] its trustworthiness and reliability” (People
v Cantave, 21 NY3d 374, 381).

     We agree with defendant, however, that the court erred in
admitting in evidence the statement of the witness identifying
defendant as the shooter under the present sense impression exception
to the hearsay rule. It is well settled that, in order “[t]o qualify
as a present sense impression, the out-of-court statement must be (1)
made by a person perceiving the event as it is unfolding or
immediately afterward . . . , and (2) corroborated by independent
evidence establishing the reliability of the contents of the
statement” (id. at 382). Here, the witness did not see the shooting,
and he confirmed defendant’s identity as the shooter only after
questioning the victim (see People v Vasquez, 88 NY2d 561, 580; see
also People v Brown, 104 AD3d 1203, 1204, lv denied 21 NY3d 1014).
Therefore, the witness’s statement was not admissible as a present
sense impression, and we conclude that the admission of that statement
in evidence improperly bolstered the victim’s identification of
defendant as the shooter (see People v Spencer, 96 AD3d 1552, 1553, lv
denied 19 NY3d 1029, reconsideration denied 20 NY3d 989; see generally
People v Smith, 22 NY3d 462, 465-467). We conclude, however, that the
court’s error “is harmless 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’ ” (Spencer, 96 AD3d at 1553, quoting People v
Kello, 96 NY2d 740, 744; see generally People v Crimmins, 36 NY2d 230,
241-242).

     Defendant’s further contention that the court erred in admitting
in evidence the testimony of a police officer that bolstered the
victim’s identification of defendant lacks merit inasmuch as that
testimony provided a narrative of the events leading to defendant’s
arrest (see e.g. People v Perry, 62 AD3d 1260, 1261, lv denied 12 NY3d
919; People v Mendoza, 35 AD3d 507, 507, lv denied 8 NY3d 987; People
v Smalls, 293 AD2d 500, 501, lv denied 98 NY2d 681). In any event,
any such error is harmless (see generally Crimmins, 36 NY2d at 241-
242), particularly in view “of the ‘clear and strong’ identification
of defendant by the victim and the other evidence of defendant's
guilt” (People v Simms, 244 AD2d 920, 920-921, lv denied 91 NY2d 897;
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                                                         KA 09-02089

see People v McCullen, 63 AD3d 1708, 1709, lv denied 13 NY3d 747;
People v Cunningham, 233 AD2d 845, 846, lv denied 89 NY2d 1091).

     Defendant’s contention that he was denied a fair trial by
prosecutorial misconduct because the prosecutor attempted to mislead
the jury on the issue whether the victim was wearing a winter coat
when she was shot is not preserved for our review (see People v
Golson, 93 AD3d 1218, 1219-1220, lv denied 19 NY3d 864; see generally
People v Rogers, 103 AD3d 1150, 1154, lv denied 21 NY3d 946) and, in
any event, that contention lacks merit. Although a “ ‘prosecutor has
a duty to correct trial testimony if he or she knows that it is
false’ ” (People v McDuffie, 77 AD3d 1360, 1361, lv denied 16 NY3d
833; see People v Savvides, 1 NY2d 554, 556-557), the record does not
establish that the prosecutor elicited false testimony or misled the
jury (see generally People v Kirk, 96 AD3d 1354, 1359, lv denied 20
NY3d 1012).

      Defendant contends that the prosecutor also engaged in misconduct
by cross-examining him regarding his failure to contact the police
after the shooting, thereby infringing upon his right to remain
silent, and then engaged in further misconduct by commenting on that
failure during summation. Those contentions are preserved for our
review only to the extent that defendant objected to parts of the
prosecutor’s summation. In any event, contrary to defendant’s
contention regarding cross-examination, “[t]he People’s primary focus
was on defendant’s conduct, to wit, his flight and his failure to seek
aid for the victim [and their child], rather than [defendant’s]
silence . . . Moreover, defendant’s failure to contact the police was
admissible as inconsistent with his defense” (People v Guzman, 259
AD2d 364, 365, lv denied 93 NY2d 925; see generally People v
Rothschild, 35 NY2d 355, 360-361). We further conclude that the
disputed parts of the People’s summation were fair comment upon the
evidence (see People v Ashwal, 39 NY2d 105, 109-110). We reject
defendant’s related contention that he was denied meaningful
representation based on defense counsel’s failure to preserve for our
review the issue of prosecutorial misconduct in its entirety. An
attorney’s “failure to ‘make a motion or argument that has little or
no chance of success’ ” does not amount to ineffective assistance
(People v Caban, 5 NY3d 143, 152, quoting People v Stultz, 2 NY3d 277,
287). For the reasons discussed above, the prosecutor’s cross-
examination of defendant on the subject of his failure to contact
police was proper and thus any argument to the contrary had “little or
no chance of success” (id.). We further conclude that defendant was
not deprived of a fair trial by the cumulative effect of the errors
alleged herein (see People v Snyder, 100 AD3d 1367, 1370, lv denied 21
NY3d 1010; People v McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d
927).

     Defendant further contends in his main and pro se supplemental
briefs that the conviction is not supported by legally sufficient
evidence and that the verdict is contrary to the weight of the
evidence, basing both contentions primarily on his challenge to the
victim’s credibility. We reject those contentions. The victim “did
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                                                         KA 09-02089

not provide internally inconsistent testimony, and she was not the
source of all of the evidence of [defendant’s] guilt” (People v
Hampton, 21 NY3d 277, 288 [internal quotation marks omitted]).
Viewing the evidence in the light most favorable to the People (see
People v Williams, 84 NY2d 925, 926), we conclude that it is legally
sufficient to support the conviction of the crimes charged (see
generally People v Bleakley, 69 NY2d 490, 495). Furthermore, 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 also conclude that
the verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495). “[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 basis for disturbing the
jury's resolution of those issues.

     Defendant further contends that the court erred in failing to
issue a decision on those parts of his omnibus motion seeking
suppression of evidence found by the police during searches of his
house and vehicle pursuant to a search warrant. In his motion,
defendant contended that his constitutional rights were violated by
the searches because the court lacked probable cause to issue the
warrant. On the initial date that the court set for argument of the
motions, the court indicated that it would review the search warrant
application and the search warrants. At the start of the trial,
defense counsel argued other motions and obtained rulings on other
applications such as his Sandoval request, but he did not seek to
argue the suppression motion. In addition, defense counsel did not
respond when the court inquired whether there were “any other issues
we may need to talk about before we bring the jury up,” nor did he
object when the evidence seized as a result of those searches was
admitted in evidence at trial. “Because defendant failed to seek a
ruling on those parts of his omnibus motion concerning the alleged
[constitutional] violation . . . or to object to the admission of
[that] evidence at trial, we conclude that defendant abandoned his
contention[] that [the court] erred in refusing to suppress [the
evidence] on those grounds” (People v Nix, 78 AD3d 1698, 1699, lv
denied 16 NY3d 799, cert denied ___ US ___, 132 S Ct 157; see People v
Anderson, 52 AD3d 1320, 1320-1321, lv denied 11 NY3d 733).

     We have considered defendant’s remaining contentions in both his
main and pro se supplemental briefs, and we conclude that they are
without merit.




Entered: June 20, 2014                          Frances E. Cafarell
                                                Clerk of the Court
