People v. Jack , 149 A.D.3d 779 ( 2017 )

People v Jack (2017 NY Slip Op 02680)

People v Jack

2017 NY Slip Op 02680

Decided on April 5, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 5, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.

2012-10668
(Ind. No. 8468/11)

[*1]The People of the State of New York, respondent,

v

Luis Jack, also known as Ernest Webb, appellant.

Lynn W. L. Fahey, New York, NY (Denise A. Corsi of counsel), for appellant, and appellant pro se.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered November 8, 2012, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court deprived him of a fair trial and his right to put on a defense when it redacted portions of a recording of a telephone call is unpreserved for appellate review (see CPL 470.05[2]). In any event, the defendant's contention is without merit. A defendant's right to present a defense is not absolute (see People v Hayes, 17 NY3d 46, 53; People v Williams, 81 NY2d 303, 313), and the trial court has wide latitude to exclude evidence that is repetitive, is only marginally relevant, or poses an undue risk of confusion of the issues (see People v Bowen, 67 AD3d 1022, 1023; People v Celifie, 287 AD2d 465; People v Cancel, 176 AD2d 748, 749). Here, the Supreme Court properly admitted into evidence certain portions of a recording of a telephone call made by the defendant while he was at Rikers Island prior to trial. During the call, the defendant stated, "The [surveillance] video has my clothes in it. . . . But it don't show my face." This part of the call was properly admitted as an admission (see People v Chico, 90 NY2d 585, 589; see also People v Grant, 17 NY3d 613, 622; People v O'Connor, 21 AD3d 1364, 1366). Furthermore, contrary to the defendant's contention, the Supreme Court did not err in excluding a portion of the recording in which the defendant surmised what a police officer would testify to and why that testimony would be a lie, because that portion of the recording did not modify or destroy the effect of the admission in the admitted portion of the recording (cf. People v Dlugash, 41 NY2d 725, 736; People v Gallo, 12 NY2d 12-15; People v Pitt, 84 AD3d 1275, 1276-1277; People v Rodriguez, 188 AD2d 566, 567).

The defendant's contention that he was deprived of the effective assistance of counsel is without merit, as defense counsel provided meaningful representation (see People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83).

The defendant's remaining contentions, raised in his pro se supplemental brief, that certain comments made by the prosecutor in his opening and closing statements deprived him of a fair trial, are without merit.

RIVERA, J.P., HALL, ROMAN and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court