| People v Buari |
| 2008 NY Slip Op 03495 [50 AD3d 483] |
| April 22, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Calvin Buari, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Joseph A. Cerbone, J.), rendered December 5,1995, convicting defendant, after a jury trial, of two counts of murder in the second degree, andsentencing him to consecutive terms of 25 years to life, and order, same court (Dominic R.Massaro, J.), entered on or about April 10, 2006, which denied defendant's CPL 440.10 motion tovacate the judgment, unanimously affirmed.
Defendant's argument that the trial court failed to follow the three-step Batsonprotocol (Batson v Kentucky, 476 US 79 [1986]) by not allowing him to give arace-neutral reason for one of his peremptory strikes is unpreserved (see People v Glenn, 7 AD3d 314[2004], lv denied 3 NY3d 674 [2004]), and we decline to review it in the interest ofjustice. Defendant's objection to seating the juror was insufficient to preserve the specificprocedural claim he raises on appeal. As an alternative holding, we also reject this claim on themerits. Contrary to defendant's contention, the trial court gave him an opportunity to proffer arace-neutral reason for his challenge, and properly seated the juror when defendant failed toprovide any reason.
At sentencing, defense counsel asserted that, after the verdict, defendant's family told himthat one of the jurors was defendant's allegedly "estranged" great-uncle. Counsel also submittedan affidavit from a defense investigator relating his interview of the juror, who claimed he neverrevealed the family relationship during trial because he was unaware of it. Counsel requested anadjournment for further investigation into whether the juror might be lying about his priorunawareness of the relationship, and for the purpose of determining whether to file a CPL 330.30(2) motion to set aside the verdict on the ground of the juror's alleged misconduct. We concludethat the court properly exercised its discretion in declining to adjourn the sentencing (seePeople v Boddie, 240 AD2d 155 [1997], lv denied 90 NY2d 902 [1997]).Defendant's claim of misconduct was speculative, and the only information before the sentencingcourt specifically contradicted it. Furthermore, the sentencing court invited defendant's retainedcounsel to raise this issue in a CPL 440.10 motion, but no such motion was forthcoming untilmany years later, after the juror in question had died. Although on appeal defendant claims to beprejudiced by the juror's present unavailability as a witness, defendant is entirely responsible forthe delay, and his [*2]attempt to excuse the delay is withoutmerit.
Furthermore, that portion of defendant's CPL 440.10 motion raising the juror issue wasproperly denied (see People v Friedgood, 58 NY2d 467, 471-473 [1983]). Theinformation before the motion court further undermines defendant's claim, since there wasevidence that defendant's family told defense counsel about defendant's relationship to the jurorduring the trial, rather than after the verdict. To the extent defendant raises a constitutional claimunder McDonough Power Equipment, Inc. v Greenwood (464 US 548, 556 [1984]), suchclaim is unavailing since defendant failed to establish that the juror deliberately lied during voirdire (see United States v Shaoul, 41 F3d 811, 815 [2d Cir 1994]). The court properlydenied those portions of the CPL 440.10 motion made on the ground of newly discoveredevidence. There is no basis for disturbing the court's credibility determinations, which aresupported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). After athorough hearing, the court properly found that the alleged new evidence, consisting essentiallyof unreliable recantations and confessions that were themselves recanted, and extremely remoteevidence of third-party culpability, did not justify vacating the judgment (see CPL 440.10[1] [g]; see also People v Dukes, 284 AD2d 236 [2001], lv denied 97 NY2d 681[2001]). We note that the hearing evidence supports the conclusion that defendant coerced one ofthe People's witnesses into confessing to the crimes of which defendant was convicted. Since therecord supports the motion court's findings that none of the alleged newly discovered evidencewas reliable, and since there is no reason to believe that any prosecution witness committedperjury at defendant's trial, or that anyone but defendant committed the murders, we rejectdefendant's constitutional claims relating to this evidence. We also find that defendant was notprejudiced by the People's delay in disclosing a taped conversation relating to the subject of thehearing.
While, at trial, the prosecutor failed to disclose a pending marijuana possession chargeagainst one of the witnesses (see CPL 240.45 [1] [c]; see also Brady v Maryland,373 US 83 [1963]), despite defendant's specific request for such information, and failed tocorrect the witness's mistaken trial testimony that the subject charge had been dismissed, themotion court properly denied the portion of defendant's CPL 440.10 motion raising that issue.There is no reasonable possibility that the nondisclosure affected the verdict (see People vVilardi, 76 NY2d 67, 73-77 [1990]), given the overwhelming evidence of defendant's guilt,and the nature of the pending charge. Concur—Lippman, P.J., Saxe, Gonzalez andNardelli, JJ.