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

267
KA 14-01503
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARSHAWN A. MORRIS, ALSO KNOWN AS SLINK,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered May 14, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree, rape
in the second degree and criminal sexual act 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
following a jury trial of murder in the second degree (Penal Law
§ 125.25 [1]), rape in the second degree (§ 130.30 [1]), and criminal
sexual act in the second degree (§ 130.45 [1]). Defendant failed to
preserve for our review his contention that the evidence is legally
insufficient to support the murder conviction (see People v Cobb, 72
AD3d 1565, 1565, lv denied 15 NY3d 803). In any event, we conclude
that the conviction is supported by legally sufficient evidence with
respect to all of the crimes charged (see People v Bleakley, 69 NY2d
490, 495). Contrary to defendant’s further contention, 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 further conclude that
the verdict is not against the weight of the evidence (see Bleakley,
69 NY2d at 495).

     Contrary to defendant’s contention, the verdict sheet, with the
inclusion of defendant’s nickname—“Slink”—was not substantively
annotated in a manner not authorized by CPL 310.20 (2) (see People v
Miller, 18 NY3d 704, 706). Furthermore, Supreme Court properly denied
defendant’s Batson application inasmuch as the prosecutor clearly
provided a race-neutral basis for the challenge, i.e., that the
decision-making ability of the prospective juror might be affected by
the fact that her aunt had been murdered and that she herself had
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                                                         KA 14-01503

previous encounters with the criminal justice system (see People v
Dixon, 202 AD2d 12, 17-18).

      We reject defendant’s contention that his Miranda waiver was
involuntary. Although the evidence establishes that defendant had
left an emergency psychiatric unit before waiving his rights, there is
no evidence that defendant was mentally ill or otherwise impaired
during his interrogation (see People v Williams, 279 AD2d 276, 277,
affd 97 NY2d 735) and, “under the totality of the circumstances,” we
conclude that defendant’s statements were knowingly, intelligently,
and voluntarily made (id. at 276-277; see People v Love, 57 NY2d 998,
999).

     Contrary to defendant’s contention, the court did not abuse its
discretion in admitting in evidence eight photographs of the victim’s
body. Although the photographs “ ‘portray[ed] a gruesome spectacle
and may [have] tend[ed] to arouse passion and resentment against the
defendant in the minds of the jury,’ ” it cannot be said that such was
their “sole purpose” inasmuch as the photographs tended to prove,
inter alia, defendant’s intent to kill (People v Pobliner, 32 NY2d
356, 369-370, rearg denied 33 NY2d 657, cert denied 416 US 905; see
People v Stevens, 76 NY2d 833, 836). In addition, “the photographs
were admissible to elucidate and corroborate” the testimony of a
medical expert insofar as that testimony concerned defendant’s intent
(Stevens, 76 NY2d at 836; see People v Camacho, 70 AD3d 1393, 1394, lv
denied 14 NY3d 886; People v Jones, 43 AD3d 1296, 1298, lv denied 9
NY3d 991, reconsideration denied 10 NY3d 812). The court also
properly exercised its discretion in denying defendant’s midtrial
motion to conduct DNA testing of a latex glove found near defendant’s
property (see generally People v Ducret, 95 AD3d 636, 636, lv denied
19 NY3d 996). In any event, defendant may still seek relief on that
point by making a motion pursuant to CPL 440.30 (1-a).

     Defendant contends that the court erred in refusing to charge
criminally negligent homicide as a lesser included offense of murder
in the second degree inasmuch as there was a reasonable view of the
evidence to support a finding that defendant committed the lesser
offense but not the greater, i.e., that defendant was merely negligent
in failing to assist the victim as she was allegedly attacked in
defendant’s apartment by his cousin. We reject that contention.
Criminally negligent homicide is a lesser included offense of murder
in the second degree (see People v Brooks, 163 AD2d 832, 832-833, lv
denied 76 NY2d 891), but charging the lesser crime would require
defendant to have a “familial relationship” with the child victim and,
therefore, an affirmative duty to assist her (People v Myers, 201 AD2d
855, 856). Here, there is no such familial relationship and,
therefore, no such affirmative duty. Thus, even assuming, arguendo,
that defendant’s cousin attacked the victim, there is no reasonable
view of the evidence that defendant committed the lesser offense of
criminally negligent homicide (see generally People v Glover, 57 NY2d
61, 63-64).

     Defendant further contends that he was deprived of a fair trial
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                                                         KA 14-01503

based on improper remarks from the prosecutor during the trial
regarding his nickname and other remarks made by the prosecutor on
summation. Defendant failed to preserve his contention for our review
with respect to the majority of instances of alleged misconduct (see
CPL 470.05 [2]), and we decline to exercise our power to address those
instances as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). With respect to those instances of alleged
misconduct that defendant preserved for our review, we conclude that
reversal is not required (see generally People v Mack, 128 AD3d 1456,
1457, lv denied 26 NY3d 969).

     Contrary to defendant’s contention, the court properly declined
his request to redact certain information from the presentence report
inasmuch as the contested information was ruled on by the court after
a Huntley hearing and was admitted in evidence at trial. Thus, the
court did not sentence defendant based upon unreliable information
(see People v Guevara, 68 AD3d 1738, 1739), and the sentence is not
unduly harsh or severe.

     Defendant’s remaining contentions have not been preserved for our
review, and we decline to exercise our power to reach them as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
