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

410
KA 12-00680
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AARON M. BOOP, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered October 7, 2009. The judgment convicted defendant, upon
a jury verdict, of vehicular manslaughter in the first degree (two
counts), manslaughter in the second degree, aggravated unlicensed
operation of a motor vehicle in the first degree, driving while
intoxicated (two counts) and aggravated driving while intoxicated.

     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, two counts each of vehicular
manslaughter in the first degree (Penal Law § 125.13 [1], [2] [b]) and
driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]).
The charges arose from an incident in which defendant, while in an
intoxicated condition, drove a pickup truck that went off of the road
and struck a tree, causing the death of the front seat passenger.

     Defendant failed to object when the prosecutor elicited testimony
from a deputy sheriff that defendant looked away instead of answering
certain questions about the death of the victim, and thus failed to
preserve for our review his contention that the prosecutor improperly
used his postarrest silence against him at trial (see People v
Jackson, 108 AD3d 1079, 1079, lv denied 22 NY3d 997; People v Ray, 63
AD3d 1705, 1707, lv denied 13 NY3d 838). In any event, any error in
the admission of that testimony is harmless beyond a reasonable doubt
because there is “no reasonable possibility that the error might have
contributed to defendant’s conviction” (People v Crimmins, 36 NY2d
230, 237; see Jackson, 108 AD3d at 1079-1080; People v Murphy, 79 AD3d
1451, 1453, lv denied 16 NY3d 862; People v Mosby, 239 AD2d 938, 938-
939, lv denied 90 NY2d 942).
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                                                         KA 12-00680

     Defendant further contends that County Court erred in admitting
in evidence photographs of the tree that the vehicle struck, because
flowers had been laid at the base of the tree. Defendant contends
that the photographs were an improper appeal to the emotions of the
jurors because the flowers constituted a “shrine” to the victim.
Contrary to the contention of the People, we conclude that defendant
preserved his contention for our review. Defense counsel objected to
the photographs, noted the presence of the flowers, and argued that
defendant would be prejudiced by the admission of the photographs in
evidence. Consequently, the issue is preserved for our review because
“the court ‘was aware of, and expressly decided, the [issue] raised on
appeal’ ” (People v Collins, 106 AD3d 1544, 1546, lv denied 21 NY3d
1072, quoting People v Hawkins, 11 NY3d 484, 493; see People v
Roberts, 110 AD3d 1466, 1467-1468; People v Duncan, 177 AD2d 187, 190-
191, lv denied 79 NY2d 1048). We nevertheless reject defendant’s
contention on the merits. “The general rule is stated in People v
Pobliner (32 NY2d 356, 369[, rearg denied 33 NY2d 657, cert denied 416
US 905]; see also People v Stevens, 76 NY2d 833): photographs are
admissible if they tend ‘to prove or disprove a disputed or material
issue, to illustrate or elucidate other relevant evidence, or to
corroborate or disprove some other evidence offered or to be offered.’
They should be excluded ‘only if [their] sole purpose is to arouse the
emotions of the jury and to prejudice the defendant’ ” (People v Wood,
79 NY2d 958, 960; see People v Lawson, 114 AD3d 962, 963). Here, we
agree with the People that the sole purpose of the evidence was not to
arouse the emotions of the jury. To the contrary, the photographs
established the relative positions of the tree and the roadway, the
visibility of the tree, and the straight nature of the roadway, all of
which were relevant to the jury’s factual determinations, including
whether defendant was driving while in an intoxicated condition.

     Defendant did not object when the court directed the prosecutor
to turn off the overhead projector upon which certain evidence was
displayed to the members of the public seated in the courtroom, and
thus failed to preserve for our review his contention that the court
thereby closed the courtroom in violation of defendant’s right to a
public trial (see People v George, 20 NY3d 75, 80-81, cert denied ___
US ___, 133 S Ct 1736; People v Spears, 94 AD3d 498, 500, lv denied 19
NY3d 1001). In any event, defendant’s right to a public trial was not
violated because the record reflects that a laptop computer screen was
still visible to the members of the public seated in the courtroom
after the overhead projector was turned off. Contrary to defendant’s
further contention, we conclude that “the court’s efforts to prevent
disruption in the courtroom during [the Medical Examiner]’s sensitive
testimony provides no basis upon which to upset defendant’s
conviction” (People v Glover, 60 NY2d 783, 785, cert denied 466 US
975; see People v Chase, 265 AD2d 844, 844, lv denied 94 NY2d 902).

     Defendant further contends that the court prevented him from
presenting evidence in his own behalf, and thereby violated his right
to present a defense, when it refused to allow defense counsel to
cross-examine the Medical Examiner with respect to whether the victim
could have sustained certain injuries while moving within the vehicle.
We reject that contention, as well as defendant’s further contention
                                 -3-                           410
                                                         KA 12-00680

that the court’s ruling constituted an abuse of discretion. There was
an insufficient foundation for defense counsel’s line of questioning,
and thus the testimony that defense counsel sought to elicit from the
Medical Examiner “would have been speculative and misleading” (People
v Banks, 33 AD3d 385, 385, lv denied 7 NY3d 923; see People v Frazier,
233 AD2d 896, 897; see also People v Walker, 223 AD2d 414, 415, lv
denied 88 NY2d 887). In addition, “[t]he minor limitations imposed by
the court precluded repetitive inquiries into possible [causes of the
injuries] in hypothetical situations. Defendant [otherwise] received
wide latitude to explore the matters about which the [Medical
Examiner] had provided expert testimony” (People v Allende, 38 AD3d
470, 471, lv denied 9 NY3d 839; see generally Crane v Kentucky, 476 US
683, 689-690).

     Defendant failed to preserve for our review his contention that
he was deprived of his right to a fair trial because the court
improperly denigrated a defense witness by making certain comments to
the jury (see People v Fudge, 104 AD3d 1169, 1170, lv denied 21 NY3d
1042; see generally People v Charleston, 56 NY2d 886, 887-888). In
any event, that contention is without merit inasmuch as the record
establishes that the court did not denigrate the defense witness.

     Finally, defendant waived his contentions that the court erred in
providing the jurors with a verdict sheet for their use during
summations, and that the court erred in providing the jurors with a
slightly different verdict sheet for their use during deliberations,
because he consented to the use of those procedures at trial (see
People v Hicks, 12 AD3d 1044, 1045, lv denied 4 NY3d 799; see also
People v Barner, 30 AD3d 1091, 1092, lv denied 7 NY3d 809; see
generally People v Colon, 90 NY2d 824, 826).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
