| People v Haigler |
| 2007 NY Slip Op 07344 [44 AD3d 329] |
| October 4, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Haigler, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), forrespondent.
Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered March 16, 2005,convicting defendant, after a jury trial, of three counts of robbery in the first degree andsentencing him, as a second felony offender, to concurrent terms of 20 years, unanimouslyaffirmed.
The court properly admitted evidence of telephone calls made to two prosecution witnesseson the eve of trial. There was ample proof, including credible voice recognition testimony andcircumstantial evidence, to establish that defendant was the maker of the calls (see People vLynes, 49 NY2d 286, 291-293 [1980]; People v Hamilton, 3 AD3d 405 [2004], mod on othergrounds 4 NY3d 654 [2005]), and these serious attempts at witness tampering were highlyprobative of defendant's consciousness of guilt. In addition, there was a sufficient foundationupon which the People could make a fair argument that these calls influenced a third witness tochange his testimony to make it more favorable to defendant. The court properly exercised itsdiscretion in denying defendant's belated mistrial motion made when a witness, in recountingthese phone calls, made reference to plea negotiations involving defendant. A curative instructionwould have sufficed to prevent any prejudice, but defendant declined that remedy, insisting onlyon the unwarranted remedy of a mistrial (see People v Santiago, 52 NY2d 865 [1981];People v Young, 48 NY2d 995 [1980]).
Although the prosecutor made a summation comment that inaccurately stated the evidence,this error did not deprive defendant of a fair trial (see People v D'Alessandro, 184 AD2d114, 118-119 [1992], lv denied 81 NY2d 884 [1993]). The prosecutor's summationremark that defendant had engaged in manipulative behavior constituted fair comment on theevidence (see People v Overlee, 236 AD2d 133 [1997], lv denied 91 NY2d 976[1998]). Defendant's remaining summation claim is unpreserved and we decline to review it inthe interest of justice. Were we to review this claim, we would reject it.
For the reasons stated in our decision in People v Lemos (34 AD3d 343 [2006], lv denied 8 NY3d924 [2007]), we find unpreserved defendant's argument that the court unlawfully [*2]imposed a mandatory surcharge and fees when it did so only inwriting, and we decline to review it in the interest of justice. Were we to review it, we would findit without merit. Concur—Andrias, J.P., Sullivan, Catterson, McGuire and Malone, JJ.