| People v Thompson |
| 2012 NY Slip Op 01384 [92 AD3d 1139] |
| February 23, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EddieThompson, Jr., Appellant. |
—[*1] D. Holley Carnright, Kingston (Cindy B. Chavkin of counsel), for respondent.
Mercure, A.P.J. Appeal from a judgment of the Supreme Court (R. Sise, J.), renderedNovember 19, 2009 in Ulster County, upon a verdict convicting defendant of the crime ofmanslaughter in the first degree.
Defendant was charged in an indictment with a single count of murder in the second degreeafter he twice shot his girlfriend at her home. He maintained that the shooting was accidentaland, following a jury trial, was convicted of the lesser included offense of manslaughter in thefirst degree. Supreme Court imposed a prison sentence of 25 years to be followed by postreleasesupervision of five years, and defendant appeals.
We affirm. Initially, we reject defendant's argument that Supreme Court erred in refusing tocompel pretrial disclosure of the grand jury testimony of the People's ballistics expert.[FN1]Pretrial discovery in criminal proceedings is governed by statute (see People v DaGata,86 NY2d 40, 44 [1995]; Matter of Constantine v Leto, 157 AD2d 376, 378 [1990],affd for reasons stated below 77 NY2d 975 [1991]), and the relevant provision permitsdiscovery of "[a]ny written report or document, or portion thereof, concerning a physicalor mental [*2]examination, or scientific test or experiment" madeby an expert at the People's request (CPL 240.20 [1] [c] [emphasis added]). Inasmuch as theexpert's oral testimony therefore lies outside of the statute's scope, Supreme Courtproperly refused to order disclosure pursuant to CPL 240.20 (see People v Montelbano,232 AD2d 255, 255 [1996], lv denied 89 NY2d 944 [1997]).
Turning to defendant's various claims regarding jury selection, he waived any argumentregarding his unsuccessful challenge for cause to one juror by thereafter declining to use anavailable peremptory challenge to remove that juror (see CPL 270.20 [2]; People v Jackson, 59 AD3d 736,736 [2009], lv denied 12 NY3d 916 [2009]). In contrast, his arguments regarding aprospective juror who lived in the same town as the District Attorney are properly before us.Nevertheless, the juror's "nodding acquaintance" with the District Attorney amounted tooccasional encounters at social events that were not likely to preclude the prospective juror fromreaching an impartial verdict (People v Provenzano, 50 NY2d 420, 425 [1980];see CPL 270.20 [1] [c]; People v Duffy, 124 AD2d 258, 260 [1986], lvdenied 69 NY2d 710 [1986]). As such, Supreme Court properly accepted the prospectivejuror's assurance that he could be impartial in denying defendant's challenge for cause (see People v Molano, 70 AD3d1172, 1174 [2010], lv denied 15 NY3d 776 [2010]; cf. People v Furey, 18 NY3d 284,287-288 [2011]).
Defendant further asserts that the weight of the evidence does not support the jury's findingthat he intended to cause the victim serious physical injury (see Penal Law §125.20 [1]).[FN2]At trial, the victim's daughter contradicted defendant's account of an accidental shooting. Rather,she testified that the victim and defendant had been arguing on the night in question. Afterhearing screams and a gunshot, the daughter investigated and found defendant aiming the pistolat the victim, who was pleading with him to "stop." As the daughter ran out of the house whilecalling 911, she heard a second gunshot. Defendant's account was further undermined byevidence indicating that the victim's gunshot wounds were inconsistent with a rapid andaccidental discharge of the pistol. Moreover, bruising on the victim's left temple was notedduring the autopsy, and the pathologist opined that the bruising was most likely caused by thevictim being struck by the butt of the pistol. According due deference to the jury's determinationto credit the version of events that was advanced by the victim's daughter and supported byforensic evidence, we cannot say that the verdict was against the weight of the evidence (see People v Baker, 27 AD3d1006, 1009 [2006], lv denied 7 NY3d 785 [2006]; see also People v Owens,251 AD2d 898, 899-900 [1998], lv denied 92 NY2d 951 [1998]).
We turn next to defendant's claim that Supreme Court failed to properly investigate a juror'sdisclosure that she saw a domestic violence poster containing the victim's name and date of deathwhile taking a walk. Supreme Court thoroughly questioned the juror and, in our view, the recordfully supports the court's determination that she was not "grossly unqualified to serve" (CPL270.35 [1]; see People v Buford, 69 NY2d 290, 298-300 [1987]; People vPinckney, 220 AD2d 539, 539-540 [1995], lv denied 87 NY2d 906 [1995]).Moreover, defendant participated [*3]in this inquiry and did notobject to its outcome and, as such, will not be heard to complain that additional investigation wasrequired (see People v Cecunjanin,67 AD3d 1072, 1077 [2009], mod on other grounds 16 NY3d 488 [2011]; Peoplev Pinckney, 220 AD2d at 540).
Finally, defendant challenges Supreme Court's refusal to repeat its charge to the jury on theissue of reasonable doubt, which was interrupted when a juror's cell phone went off. The courtstarted the instruction anew after the interruption, and stressed to the jury that the charge wouldbe repeated at the jury's request. The jury did not request that the instruction be repeated and,under the circumstances presented, Supreme Court was under no obligation to do so (seePeople v Craig, 293 AD2d 351, 351 [2002], lv denied 98 NY2d 674 [2002];People v King, 277 AD2d 708, 710 [2000], lv denied 96 NY2d 802 [2001]).
Defendant's challenges to the testimony of the People's forensic pathologist and thecomposition of the jury panel are not properly before us. We have examined defendant'sremaining contentions and conclude that they are without merit.
Rose, Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment is affirmed.[Prior Case History: 25 Misc 3d 1241(A), 2009 NY Slip Op 52542(U).]
Footnote 1: We note that the expert testifiedat trial and, as such, his grand jury testimony was later disclosed pursuant to CPL 240.45 (1) (a).
Footnote 2: Although defendant's challengeis not properly preserved insofar as he attacks the legal sufficiency of the evidence, our weight ofthe evidence "review necessarily involves an evaluation of whether all elements of the chargedcrime were proven beyond a reasonable doubt at trial" (People v Nisselbeck, 85 AD3d 1206, 1207 n 1 [2011]; see People v Danielson, 9 NY3d342, 349 [2007]).