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

1198
KA 11-01585
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JOYCE E. POWELL, DEFENDANT-APPELLANT.


MARCEL J. LAJOY, ALBANY, FOR DEFENDANT-APPELLANT.

JOYCE E. POWELL, DEFENDANT-APPELLANT PRO SE.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION, FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered August 1, 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 her,
following a jury trial, of murder in the second degree (Penal Law §
125.25 [1]) arising from the 1992 shooting death of the victim. The
trial evidence established that, several weeks before the murder,
defendant confronted the victim, who was an acquaintance of defendant,
with a small handgun and threatened to kill him because he owed
defendant money. On the night of the murder, the victim was at a bar
with defendant and two other men, and a bartender observed the group
leave and drive away in a black car with a red top. The bartender’s
description of the car matched defendant’s car. After leaving the
bar, according to one of the men—a passenger riding in the back seat,
defendant stopped the car along a road where defendant, the victim,
and the other man exited the car. The backseat passenger heard an
argument followed by six or seven gunshots. Defendant and the other
man returned to the car without the victim and drove away.
Thereafter, the victim’s body was discovered along a rural road, and
an earring in the victim’s earlobe was missing its back. A subsequent
autopsy revealed that the victim had been shot several times. The day
after the victim’s body was discovered, defendant admitted to the
victim’s sister that she was with the victim on the night in question,
but claimed that she had left the victim at a party.

     Ten days after the victim’s body was discovered, the police made
an unrelated traffic stop of defendant’s black car with a red top, and
they observed two live rounds of ammunition inside the car. During a
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                                                         KA 11-01585

search of the car, police recovered the back to an earring from the
floor of the back seat and a cassette tape from the floor of the front
passenger seat. Police also recovered a gun in the hatchback area of
the car. Ballistics testing of the gun linked it to bullets recovered
from the victim’s body during the autopsy, and sales receipts
connected defendant to the out-of-state purchase of ammunition for the
gun in the weeks before the murder.

     Prior to trial, police discovered that the cassette tape
recovered from defendant’s car contained a rap song with lyrics
paralleling the circumstances of the murder. Witnesses familiar with
defendant’s voice identified her voice as the female voice singing the
rap song, and other witnesses testified with respect to the cassette
tape, a digitally enhanced compact disc recording of the rap song, and
a transcript of the rap song’s lyrics. Those three items thereafter
were admitted in evidence.

     Defendant contends in her main brief that County Court erred in
allowing testimony of uncharged bad acts from two witnesses. We
reject that contention. We note that only one of the two witnesses
testified to an uncharged bad act, i.e., that, in the weeks prior to
the victim’s death, the witness had observed defendant confront the
victim with a small handgun and threaten to kill him because he owed
her money. We conclude that the court properly admitted that
testimony because it was relevant to establish defendant’s motive and
intent, and the court properly determined that the prejudicial effect
of the evidence does not outweigh its probative value (see People v
Mosley, 55 AD3d 1371, 1372, lv denied 11 NY3d 856; People v Dilbert, 1
AD3d 967, 967, lv denied 1 NY3d 626; see generally People v
Ventimiglia, 52 NY2d 350, 359). Contrary to defendant’s contention,
the other witness did not give any testimony concerning uncharged bad
acts; rather, her testimony concerned her familiarity with defendant’s
voice and the identification of defendant’s voice on the recording of
the rap song.

     Defendant further contends in her main brief that the court erred
in admitting the cassette tape in evidence inasmuch as the person
rapping on the cassette tape had not been clearly identified. That
contention is not preserved for our review inasmuch as defendant
failed to object to the admission of the cassette tape in evidence on
that ground (see CPL 470.05 [2]).

     Defendant contends in her pro se supplemental brief that the rap
song was admitted in evidence without a proper evidentiary foundation.
We reject that contention. In addition to the four witnesses who
identified defendant’s voice, the backseat passenger testified that he
recorded the background music for the rap song up to a year before the
victim’s death. Police witnesses gave testimony with respect to the
chain of custody of the cassette tape, and a sound engineer/acoustics
expert opined that, within a reasonable degree of scientific
certainty, the cassette tape was recorded only once and had not been
altered. To the extent that defendant contends that there was a gap
in the chain of custody of the cassette tape, such gaps go to the
weight of the evidence and not to its admissibility (see People v
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                                                         KA 11-01585

Hawkins, 11 NY3d 484, 494; People v McGee, 49 NY2d 48, 60, cert denied
446 US 942; cf. People v Ely, 68 NY2d 520, 527-528). Consequently,
the court did not err in determining that the evidentiary foundation
of the cassette tape was adequate. Although there was no evidence
conclusively establishing when defendant recorded the rap song, we
conclude that the cassette tape was nevertheless admissible inasmuch
as “[t]he lyrics of the song describe a murder occurring under similar
circumstances as those present in the instant case” (People v Wallace,
59 AD3d 1069, 1070, lv denied 12 NY3d 861). We reject defendant’s
related contention in her main brief that the alleged error in
admitting the cassette tape in evidence was compounded by the
admission in evidence of the transcript of the lyrics. We conclude
that the court properly exercised its discretion in permitting the use
of the transcript of the rap song as an aid to the jury (see People v
Knight, 280 AD2d 937, 939, lv denied 96 NY2d 864). Even assuming,
arguendo, that the court erred in admitting the rap song and a
transcript of its lyrics in evidence, we conclude that the error is
harmless inasmuch as the evidence of defendant’s guilt is
overwhelming, and there is no significant probability that defendant
otherwise would have been acquitted (see generally People v Crimmins,
36 NY2d 230, 241-242; People v Wachtel, 124 AD2d 613, 615, lv denied
69 NY2d 835).

     Defendant contends in her main brief that the evidence is legally
insufficient to support the conviction. That contention is preserved
for our review only to the extent that she contends that the testimony
of the backseat passenger was incredible as a matter of law, that the
evidence failed to connect her to the victim’s death, and that there
was insufficient forensic evidence at the murder scene and in
defendant’s car (see People v Gray, 86 NY2d 10, 19; People v Gaston,
104 AD3d 1206, 1207). We reject defendant’s contention that the
backseat passenger’s testimony was incredible as a matter of law. It
cannot be said that his testimony was “ ‘manifestly untrue, physically
impossible, contrary to experience, or self-contradictory’ ” (Gaston,
104 AD3d at 1207), and we decline to disturb the jury’s credibility
determinations with respect to that testimony (see People v Aikey, 94
AD3d 1485, 1486, lv denied 19 NY3d 956). We also reject defendant’s
claims that the evidence failed to connect her to the victim’s death
and that there was insufficient forensic evidence at the murder scene
and in her car. Rather, viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that there is a “valid line of reasoning and permissible
inferences which could lead a rational person to the conclusion
reached by the jury on the basis of the evidence at trial and . . . as
a matter of law satisfy the proof and burden requirements for every
element of [murder in the second degree]” as a principal or an
accomplice (People v Bleakley, 69 NY2d 490, 495).

     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 in her main brief that the
verdict is against the weight of the evidence (see generally Bleakley,
69 NY2d at 495).
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                                                         KA 11-01585

     Defendant contends in her main brief that the prosecutor’s
opening statement was insufficient because the prosecutor failed to
address the issue of liability and accountability pursuant to Penal
Law § 20.00. We reject that contention. “There is no distinction
between liability as a principal and criminal culpability as an
accessory and the status for which the defendant is convicted has no
bearing upon the theory of the prosecution” (People v Duncan, 46 NY2d
74, 79-80, rearg denied 46 NY2d 940, cert denied 442 US 910). Whether
defendant was the actual perpetrator of the crime or liable as an
accessory is therefore irrelevant, and we conclude that the
prosecutor’s opening statement “was sufficient to apprise the jury of
the nature of the case” (People v Nuffer, 70 AD3d 1299, 1300).

     Contrary to defendant’s contention in her main and pro se
supplemental briefs that she was denied her right to a fair trial when
the prosecutor told prospective jurors that a codefendant had been
acquitted, we conclude that the court’s “inquiry and instructions were
sufficient to cure any potential prejudice and to ensure defendant’s
right to a fair trial” (People v Chavys, 263 AD2d 964, 964, lv denied
94 NY2d 821). The court therefore did not abuse its discretion in
denying defendant’s motion for a mistrial premised on the prosecutor’s
comment (see People v Wilson, 78 AD3d 1213, 1214, lv denied 16 NY3d
747).

     Defendant’s contention in her pro se supplemental brief that
defense counsel was ineffective “is based in large part upon facts
that are outside the record and thus [is] not subject to review on
direct appeal” (People v Bennett, 277 AD2d 1008, 1008, lv denied 96
NY2d 780).

     We have reviewed defendant’s remaining contentions in her main
and pro se supplemental briefs and conclude that none warrants
reversal or modification of the judgment of conviction.




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
