People v. Cannon

testimony from Detective John Rodgers and the confidential informant. Contrary to the defendant's contention, the People demonstrated that those witnesses had sufficient contact with the defendant to achieve a level of familiarity that rendered their opinion helpful to the jury ( see People v Trowell , 172 AD3d 1112 , 1113; People v Jones , 161 AD3d 1103 ). Moreover, the surveillance video images were "not so crystal clear that the jury could identify a person as capably as any witness, and not so obscure that no witness could readily identify the individual" ( People v Mosley , 41 NY3d at 649), which, under the circumstances of this case, weighed in favor of the admission of the testimony ( see id. ). Further, the court provided a limiting instruction, explaining to the jury that it could consider the opinion testimony relating to the video as an aid, but was free to accept or reject that opinion, and that it was "ultimately [the jury's] decision as to who the individuals are depicted in these videos."

However, the Supreme Court improvidently exercised its discretion in admitting the identification testimony from the remaining two witnesses. The People failed to meet their burden of demonstrating that those witnesses had sufficient contact with the defendant to achieve a level of familiarity that rendered their opinion helpful to the jury ( see id. at 650-651; People v Lowe , 237 AD3d at 1227; People v Lewis , 225 AD3d 896 , 898). Nevertheless, under the circumstances of this case, the error in admitting this testimony was harmless. The evidence of the defendant's guilt of the crimes of which he was convicted, without reference to the error, was overwhelming. The evidence at trial included surveillance video footage of the shooting, which showed one of the two shooters placing his hand on the hood of a car while fleeing the crime scene, and evidence that the defendant's DNA profile matched the DNA profile collected from the hood of that car. Additionally, the People presented, among other things, surveillance video footage showing the defendant engaged in a physical altercation with the murder victim three days before the shooting, evidence indicating that, after the shooting, the defendant had attempted to burn clothing that he and his codefendant had worn that day, and testimony that, two to three days after the shooting, the defendant was overheard telling his codefendant that they needed to get rid of the gun. Accordingly, there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions ( see People v Lowe , 237 AD3d at 1227; People v Tyme , 222 AD3d 783 , 784). Furthermore, the error did not deprive the defendant of his fundamental right to a fair trial ( see People v Crimmins , 36 NY2d 230, 238; People v Tyme , 222 AD3d at 784). Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of assault in the first degree beyond a reasonable doubt (Penal Law § 120.10[1]). Moreover, upon the exercise of our independent factual review power ( see CPL 470.15[5]), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633 ).

The defendant's contention that the Supreme Court erred in permitting a Facebook records custodian to testify virtually is unpreserved for appellate review ( see CPL 470.05[2]). In any event, the defendant's contention is without merit. Under the circumstances of this case, including, inter alia, the prevalence of COVID-19 at the time of the defendant's trial, the court providently exercised its discretion in permitting the records custodian to testify virtually ( see Judiciary Law § 2-b[3]; see also People v Wrotten , 14 NY3d 33 ; People ex rel. Tucker v Brann , 194 AD3d 947 , 947-948). The defendant's contention that the Supreme Court erred by admitting into evidence certain statements made by his codefendant is unpreserved for appellate review ( see CPL 470.05[2]; People v Jin Zheng , 127 AD3d 890 , 890). In any event, while the statements should not have been [*3] admitted under the coconspirator exception to the hearsay rule ( see People v Caban , 5 NY3d 143 , 148), the error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions ( see People v Jin Zheng , 127 AD3d at 891).

The defendant's contentions regarding the Supreme Court's Sandoval ruling ( see People v Sandoval , 34 NY2d 371) are unpreserved for appellate review ( see CPL 470.05[2]; People v Gilliam , 229 AD3d 565 , 566). In any event, the court's Sandoval ruling was a provident exercise of discretion, as it constituted an appropriate compromise which balanced the probative value of the proffered evidence against the prejudice to the defendant ( see People v Hayes , 97 NY2d 203, 208; People v Cooper , 224 AD3d 925 , 926).

The defendant's contentions regarding the Supreme Court's Molineux ruling ( see People v Molineux , 168 NY 264) are unpreserved for appellate review ( see CPL 470.05[2]; People v Cooper , 224 AD3d at 926). In any event, the defendant's contentions are without merit ( see People v Gamble , 18 NY3d 386 , 398; People v Dorm , 12 NY3d 16 ,

19).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution, since, viewing defense counsel's performance in its totality, counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v Washington , 466 US 668). The defendant's remaining contentions are without merit.

BARROS, J.P., WARHIT, TAYLOR and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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