People v. Erby

Appellate Division of the Supreme Court of New York

People v. Erby

296 A.D.2d 311, 744 N.Y.S.2d 322, 2002 N.Y. App. Div. LEXIS 7133

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 2002

StatusPublished

This text of 296 A.D.2d 311 (People v. Erby) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Erby, 296 A.D.2d 311, 744 N.Y.S.2d 322, 2002 N.Y. App. Div. LEXIS 7133 (N.Y. Ct. App. 2002).

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Opinion

—Judgment, Supreme Court, New York County (Colleen McMahon, J.), rendered July 28, 1998, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). Issues of credibility and identification were properly presented to the jury and we find no reason to disturb its determinations. The People’s case featured reliable identifications of defendant by three eyewitnesses to the murder, who were acquainted with defendant.

After sufficient inquiry, the court properly exercised its discretion in excluding defendant’s sister from the courtroom during the testimony of an eyewitness (see, People v Ming Li, 91 NY2d 913). This eyewitness had given specific testimony before the grand jury concerning defendant’s sister’s threat to kill anyone who testified against her brother (see, People v Montgomery, 205 AD2d 259, affd 88 NY2d 1041). That testimony was corroborated by other information indicating that the case was surrounded by a general atmosphere of witness intimidation. Furthermore, the closure order was limited to the exclusion of only one person during the testimony of only one [312]*312of the principal prosecution witnesses. Accordingly, we find that this limited closure was justified by an “overriding interest” (Waller v Georgia, 467 US 39, 48).

Defendant’s complaints about the prosecutor’s summation are unpreserved (see, People v Balls, 69 NY2d 641), and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin and Rubin, JJ.

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—Judgment, Supreme Court, New York County (Colleen McMahon, J.), rendered July 28, 1998, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490). Issues of credibility and identification were properly presented to the jury and we find no reason to disturb its determinations. The People’s case featured reliable identifications of defendant by three eyewitnesses to the murder, who were acquainted with defendant.

After sufficient inquiry, the court properly exercised its discretion in excluding defendant’s sister from the courtroom during the testimony of an eyewitness (see, People v Ming Li, 91 NY2d 913). This eyewitness had given specific testimony before the grand jury concerning defendant’s sister’s threat to kill anyone who testified against her brother (see, People v Montgomery, 205 AD2d 259, affd 88 NY2d 1041). That testimony was corroborated by other information indicating that the case was surrounded by a general atmosphere of witness intimidation. Furthermore, the closure order was limited to the exclusion of only one person during the testimony of only one [312]*312of the principal prosecution witnesses. Accordingly, we find that this limited closure was justified by an “overriding interest” (Waller v Georgia, 467 US 39, 48).

Defendant’s complaints about the prosecutor’s summation are unpreserved (see, People v Balls, 69 NY2d 641), and we decline to review them in the interest of justice. Were we to review these claims, we would find no basis for reversal (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976; People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur — Tom, J.P., Mazzarelli, Rosenberger, Ellerin and Rubin, JJ.

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Bluebook (online)

296 A.D.2d 311, 744 N.Y.S.2d 322, 2002 N.Y. App. Div. LEXIS 7133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-erby-nyappdiv-2002.

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