| People v McDuffie |
| 2007 NY Slip Op 10246 [46 AD3d 1385] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CliftonMcDuffie, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Steven Meyer of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered February 8, 2006. The judgment convicted defendant, after a nonjury trial, of assault inthe third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, ofassault in the third degree (Penal Law § 120.00 [3]). We agree with defendant thatSupreme Court erred in admitting in evidence the preliminary hearing testimony of a witnesswho, according to the People, was out of the country. The People were required to establish boththat the witness was out of the country and that the witness could not "with due diligence bebrought before the court" (CPL 670.10 [1]). Indeed, because "a trial on paper should beconducted only as a last resort" (People v Diaz, 97 NY2d 109, 117 [2001]), the Peoplewere required to "show that they conducted a thorough investigation of those possibilit[ies],albeit remote, that . . . might produce the [witness]" (People v Combo, 272AD2d 992, 993 [internal quotation marks omitted]). We conclude under the circumstances of thiscase that, as a matter of law, the People did not exercise the due diligence contemplated by CPL670.10 (1) (see Diaz, 97 NY2d at 116). The prosecutor merely asserted that the cousinand brother of the witness had informed him that the witness was in Yemen and, although thewitness's brother had offered to arrange a telephone call between the prosecutor and the witness,the prosecutor took no affirmative steps to follow up on the offer when the brother failed tocontact him.
Nevertheless, we conclude that the error in admitting the preliminary hearing testimony isharmless. That testimony concerned, inter alia, charges of which defendant ultimately wasacquitted. Although the testimony also concerned the charge of assault, it was relevant only withrespect to the element of identity, and defendant's identity as the assailant was established by thevictim's testimony and defendant's postarrest statements. Thus, "we may accurately characterize[the witness's] identification testimony as cumulative and conclude that its admission could nothave contributed to defendant's conviction" (People v Rufin, 237 AD2d 866, 869 [1997];see generally [*2]People v Crimmins, 36 NY2d 230,241-242 [1975]).
Defendant waived his challenge to the legal sufficiency of the evidence by asking the court toconsider the lesser included offense of assault in the third degree, of which he was convicted(see CPL 300.50 [1]; People v Richardson, 88 NY2d 1049, 1051 [1996]).Defendant " 'ought not be allowed to take the benefit of the favorable charge and complain aboutit on appeal' " (People v Shaffer, 66 NY2d 663, 665 [1985]; see People v Kearney, 25 AD3d622, 623 [2006], lv denied 6 NY3d 849 [2006]). We further conclude that the verdictis not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Contrary to defendant's contention, the failure of defense counsel to move todismiss the indictment pursuant to CPL 30.30 did not constitute ineffective assistance of counselinasmuch as such a motion would not have been successful (see People v Bull, 265AD2d 836 [1999], lv denied 94 NY2d 860 [1999]). Defendant further contends that thecourt erred in refusing to suppress his postarrest statements because his waiver of hisMiranda rights was involuntary, based on his level of intoxication. We reject thatcontention. It does not appear in the record before us that defendant "was intoxicated to thedegree of mania, or of being unable to understand the meaning of his statements, to render hisstatements inadmissible" (People vCarpenter, 13 AD3d 1193, 1193 [2004], lv denied 4 NY3d 797 [2005], quotingPeople v Schompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967][internal quotation marks omitted]). Present—Martoche, J.P., Smith, Centra, Peradotto andGreen, JJ.