| People v Johnson |
| 2008 NY Slip Op 01634 [48 AD3d 348] |
| February 26, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Damien Johnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York City (Michael S. Morgan of counsel),for respondent.
Judgments, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered March14, 2005, convicting defendant, after a jury trial, of murder in the second degree, criminalfacilitation in the second degree and criminal possession of a weapon in the second and thirddegrees, and sentencing him an aggregate term of 30 years to life, unanimously affirmed.
The court properly exercised its discretion in denying defendant's application, made afterboth parties' summations, to reopen the trial to allow testimony of an inmate concerning the chiefprosecution witness's alleged admission that he had testified falsely. According to defendant, thealleged admission occurred in the midst of trial, while defendant, the prosecution witness and theproposed defense witness were riding on a Department of Correction bus. Nevertheless,defendant did not tell his attorney about this incident until after summations, and provided noexcuse for the delay. Thus, there was no compelling reason for the court to deviate from thenormal order of proof (see CPL 260.30; People v Olsen, 34 NY2d 349, 353[1974]; People v Mason, 263 AD2d 73, 77 [2000]).
To the extent that defendant is raising a constitutional claim, such claim is unpreserved (see People v Lane, 7 NY3d 888,889 [2006]) and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits. Since defendant had the opportunity to introduce this evidence at theproper time and in the proper manner, there was no [*2]impairment of his right to present a defense (see Crane vKentucky, 476 US 683, 689-690 [1986]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Saxe, Friedman,Gonzalez and McGuire, JJ.