People v. Mulligan
This appeal addresses several matters following the criminal conviction upon a jury verdict of Defendant, Edwin L. Mulligan. Defendant was convicted of attempted second degree murder, first degree assault, two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and endangering the welfare of a child. During the trial, the court admitted into evidence a 911 call that took place only minutes after the shooting. On the call, the 911 operator asked the witness who shot the victim and the witness responded, “I guess her boyfriend.” The witness then asked the victim to identify the shooter and the victim identified defendant. The witness repeated what the victim said to the 911 operator. Defendant argued that the trial court erred in admitting this evidence because the victim’s statement was not an excited utterance and because the witness’ identification was not a present sense impression.
The court held that the statement made by the victim was an excited utterance, even though it was a response to an inquiry. After looking at the circumstances in the case (the victim made the statement after being shot four times in front of her young child, within minutes of the incident and she indicated to paramedics that she did not want to die), the appellate court agreed with the trial court that the victim spoke while under the stress of the event and thus it qualified as an excited utterance. However, the court agreed with defendant that the witness’ statement identifying defendant as the shooter should not have been considered a present sense impression because the witness did not see the shooting and only confirmed the shooter’s identity after asking the victim. The court held that this witness’ statement bolstered the victim’s identification, but that it was harmless error in light of the overwhelming evidence of defendant’s guilt and the probability that the jury would have convicted him regardless of the error.
Defendant contended that testimony of a police officer during trial also bolstered the victim’s identification. However, the appellate court held this to be without merit because the officer’s testimony provided a narrative of the events leading up to defendant’s arrest and even if it was error, it was harmless in light of the strength of the victim’s identification. Defendant alleged prosecutorial misconduct, which the appellate court also held to be without merit. Defendant contended that during cross examination of defendant, the prosecutor denied him the right to remain silent by asking him about his failure to call the police. The Court held that the cross-examination focused on defendant’s conduct and showed inconsistency in his defense and therefore defendant’s claim was without merit. The court rejected defendant’s claim of ineffective assistance of counsel for failing to completely preserve a prosecutorial misconduct issue, noting that counsel need not make a motion or argument that has little chance of success. The appellate court rejected defendant’s arguments on legal sufficiency and weight of the evidence.
Lastly, the appellate court rejected defendant’s argument that the trial court failed to make rulings on his omnibus motion seeking suppression of evidence found pursuant to a search warrant. The appellate court held that defendant never sought a ruling on these issues or raised them during the trial and therefore, his argument was without merit.
988 N.Y.S.2d 354 (4th Dept. 2014)