| People v Cepeda |
| 2008 NY Slip Op 01427 [48 AD3d 294] |
| February 19, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Remulo Cepeda, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Mary Jo L. Blanchard of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Thomas Farber, J.), rendered November 10, 2004,convicting defendant, after a jury trial, of murder in the second degree (two counts), robbery inthe first degree, reckless endangerment in the first degree, criminal possession of stolen propertyin the third degree, and unauthorized use of a vehicle in the third degree, and sentencing him toan aggregate term of 82 years to life, unanimously affirmed.
Defendant was convicted of, among other things, murdering two of his fellow drug dealersand then forcibly stealing a car from three strangers in an effort to escape. The court properlyexcluded evidence of alleged third-party culpability because, other than motive and the thirdparty's prior attempt to kill one of the murder victims, there was no evidence linking the thirdparty to the instant crimes (see People v Primo, 96 NY2d 351 [2001]). At a proceedingoutside the presence of the jury, the court was made aware that although the alleged alternativesuspect's photograph had been shown to the eyewitnesses in this case, no one identified thatperson. Given the lack of evidentiary nexus, there was no violation of defendant's right to presenta defense (see Crane v Kentucky, 476 US 683, 689-690 [1986]; compare Holmes vSouth Carolina, 547 US 319 [2006]). In any event, exclusion of this evidence could not haveaffected the verdict. We also note that defendant was able to establish at trial that the victim inquestion, like defendant himself, was a dealer in large amounts of fake drugs. Thus, the jury wasaware that this victim was the type of person likely to have enemies in the drug trade, andevidence that he may have had a particular enemy would have added little.
The trial court properly exercised its discretion in declining to reopen the Wadehearing based on evidence adduced at trial. Since defendant's attorney was aware, prior to thedetermination of the suppression motion, of the expected testimony of one of the carjackingvictims regarding the photo identification of defendant, that victim's trial testimony did notconstitute "additional pertinent facts" that defendant "could not have discovered with reasonablediligence before the determination of the motion" (CPL 710.40 [4]; People vWashington, 238 AD2d 43, 49 [1998], lv denied 91 NY2d 1014 [1998]). Further, theadditional facts asserted would not have materially [*2]affectedthe earlier Wade determination since the victim's testimony did not support any inferencethat the identification procedure was unduly suggestive (see People v Clark, 88 NY2d552, 555 [1996]).
Defendant is not entitled to any relief on account of the prosecutor's summation comments.We agree with the People's position that despite the statements by the prosecutor to the effect thatthere was "no suspect" at the time of the photo arrays and that defendant did not become "asuspect" until after the photo arrays, in context, the import of the prosecutor's statements was theperfectly proper argument that there was no one suspect at the time of the arrays. Nor didthe prosecutor act improperly merely because her argument that "the People have proven thedefendant is the person who [committed the crimes charged]" was preceded by the phrase "Ibelieve."
The court properly denied defendant's motion for substitution of counsel. The court, whichconducted a sufficient inquiry into defendant's complaints and accorded him ample opportunityto be heard, correctly found that there was no good cause for assignment of yet another attorneyto defendant, who had already been represented by at least three other attorneys (see People v Linares, 2 NY3d 507,511 [2004]). Concur—Tom, J.P., Nardelli, Williams and McGuire, JJ.