Photograph of Accident Scene Properly Admitted Notwithstanding Flowers Remembering Victim

The Fourth Department, in affirming defendant’s conviction stemming from the death of a passenger after defendant’s vehicle struck a tree, determined that the photograph of the accident scene was properly admitted notwithstanding the flowers placed at the scene in remembrance of the victim.  The court also rejected arguments that (1) defendant’s post-arrest silence was revealed to the jury (not preserved) (2) turning off the overhead projector effectively closed the courtroom (not preserved) and (3) defense counsel was erroneously prohibited from questioning the medical examiner about alternative causes for the victim’s injuries (speculative,  insufficient foundation).  With respect to the photograph, the court wrote:

“The general rule is stated in People v Pobliner (32 NY2d 356, 369…) photographs are admissible if they tend to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” … . Here, we agree with the People that the sole purpose of the evidence was not to arouse the emotions of the jury. To the contrary, the photographs established the relative positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway, all of which were relevant to the jury’s factual determinations, including whether defendant was driving while in an intoxicated condition. People v Boop, 2014 NY Slip Op 04296, 4th Dept 6-13-14