People v. Colon

102 A.D.3d 705, 956 N.Y.S.2d 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 2013
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered July 14, 2010, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court improperly admitted into evidence a photograph of the victim taken when he was alive, since this evidence was not relevant to a material fact to be proved at trial (see People v Stevens, 76 NY2d 833 [1990]; People v Mills, 48 AD3d 703 [2008]; People v Thompson, 34 AD3d 852, 854 [2006]; People v Rodriguez, 1 AD3d 386 [2003]). However, the error was harmless, as there was overwhelming evidence of the defendant’s guilt, and no significant probability that the error contributed to his convictions (see People v Crimmins, 36 NY2d 230 [1975]; People v Jackson, 41 AD3d 1268, 1269 [2007]; People v Dove, 233 AD2d 751, 754 [1996]). Moreover, the People’s failure to preserve this exhibit did not deprive the defendant of meaningful appellate review (see People v Yavru-Sakuk, 98 NY2d 56, 60 [2002]; People v Jackson, 98 NY2d 555, 560 [2002]; People v Jackson, 41 AD3d at 1269).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Angiolillo, J.P., Leventhal, Lott and Austin, JJ., concur.