SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1231 

KA 12-00650 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL R. WATKINS, DEFENDANT-APPELLANT. 

 

LESLEY C. GERMANOW, FULTON, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oswego County Court (Walter W.

Hafner, Jr., J.), rendered November 21, 2011. The judgment convicted

defendant, upon a jury verdict, of attempted assault in the first

degree, assault in the second degree, burglary in the first degree

(two counts) and criminal possession of a weapon in the second degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, attempted assault in the first

degree (Penal Law §§ 110.00, 120.10 [1]) and assault in the second

degree (§ 120.05 [2]) arising from a shooting at the home of

defendant’s former girlfriend. We reject defendant’s contention that

he was denied a fair trial as the result of County Court’s questioning

of a police investigator. The court was “entitled to question [the

investigator] to clarify [her] testimony and to facilitate the

progress of the trial” (People v Williams, 107 AD3d 1516, 1517, lv

denied 21 NY3d 1047 [internal quotation marks omitted]), and we

conclude that, during the questioning, the court exhibited no

partiality, bias or hostility against defendant (see People v Jamison,

47 NY2d 882, 883). 

Contrary to defendant’s contention, the court properly refused to

suppress evidence obtained by the police without a warrant from

defendant’s cell phone service provider. The provider disclosed

information to the police concerning defendant’s location through the

use of a technique commonly known as “pinging” (see generally People v

Wells, 45 Misc 3d 793, 796-797; People v Moorer, 39 Misc 3d 603, 610-

615). Even assuming, arguendo, that the use of that technique

constituted a search implicating the protections of the Federal and

State Constitutions (see US Const, 4th Amend; NY Const, art I, § 12),

we conclude that the People established that exigent circumstances
-2- 1231 

KA 12-00650 

justified the police in proceeding without a warrant (see generally

People v McBride, 14 NY3d 440, 446, cert denied ___ US ___, 131 S Ct

327; People v Stevens, 57 AD3d 1515, 1515-1516, lv denied 12 NY3d

822).

Contrary to defendant’s further contention, the court properly

admitted in evidence a 911 recording containing the statements of a

witness present at the shooting under the excited utterance exception

to the hearsay rule (see People v Mulligan, 118 AD3d 1372, 1372-1373). 

We agree with defendant, however, that the court erred in failing to

redact that portion of the recording containing hearsay statements of

the victim that were relayed to the 911 operator by the witness (see

id. at 1373; People v Fenner, 283 AD2d 516, 517-518, lv denied 96 NY2d

939). Inasmuch as there is overwhelming evidence of defendant’s guilt

and no significant probability that the error contributed to his

conviction, we conclude that the error is harmless (see Mulligan, 118

AD3d at 1373; see generally People v Crimmins, 36 NY2d 230, 241-242).

Viewing the evidence in light of the elements of the crimes as

charged to the jury (see People v Danielson, 9 NY3d 342, 349), we

conclude that the verdict is not against the weight of the evidence

(see generally People v Bleakley, 69 NY2d 490, 495). Defendant failed

to preserve for our review his contention that the evidence of

physical injury is insufficient to support his conviction of assault

in the second degree (see People v Gray, 86 NY2d 10, 19). Viewing the

evidence in the light most favorable to the People (see People v

Contes, 60 NY2d 620, 621), we conclude that defendant’s remaining

challenges to the legal sufficiency of the evidence lack merit. 

Finally, we reject defendant’s contentions that he was denied a

fair trial by the cumulative effect of the alleged errors (see People

v McKnight, 55 AD3d 1315, 1317, lv denied 11 NY3d 927), and that the

sentence is unduly harsh and severe.

Entered: February 6, 2015 Frances E. Cafarell

Clerk of the Court