| People v Dickerson |
| 2008 NY Slip Op 07310 [55 AD3d 1276] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickyDickerson, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered October 5, 1999. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder inthe second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in thesecond degree (former § 265.03 [1]), defendant contends that Supreme Court erred inadmitting in evidence the grand jury testimony of two witnesses who failed to appear at trial. Wereject that contention. The People established by clear and convincing evidence at theSirois hearing that misconduct by defendant or others acting at his behest caused thosewitnesses to be unavailable to testify at defendant's trial (see People v Geraci, 85 NY2d359, 370 [1995]; People v Chandler,30 AD3d 161, 162 [2006], lv denied 7 NY3d 786 [2006]). Further, the court didnot abuse its discretion in precluding defendant from introducing evidence that, according todefendant, would bear on the credibility of one of those two witnesses (see People v Bosier, 6 NY3d 523,528 [2006]; Chandler, 30 AD3d at 162). Contrary to defendant's contention, the court didnot conduct a second, undeclared Sirois hearing with respect to the other unavailablewitness. The People's representations to the court concerning the failure of that witness to appearat trial merely demonstrated what already was evident, i.e., that the witness had failed to appearto testify, and the prosecutor did not thereby become an unsworn witness (cf. People v Moye, 52 AD3d 1, 6[2008]).
We reject defendant's further contention that the prosecutor's responses to two Batsonchallenges were pretextual. The court's implicit determination that the prosecutor's explanationswere race-neutral is entitled to great deference (see People v Dandridge, 26 AD3d 779, 780 [2006]). Defendantfurther contends that he was denied a fair trial by prosecutorial misconduct on summation.Defendant objected to only one comment on summation, however, and the court sustained thatobjection and issued a curative instruction that the jury is presumed to have followed (seePeople v Rivera, 281 AD2d 927, 928 [2001], lv denied 96 NY2d 906 [2001]; seealso People v Heide, 84 NY2d 943, 944 [1994]). Defendant failed to preserve for our reviewhis remaining challenges [*2]to alleged prosecutorial misconducton summation, and we decline to exercise our power to review them as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). We conclude that defendant receivedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Contrary to defendant's further contentions, the evidence is legally sufficient to support theconviction and the verdict is not against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). The sentence is not unduly harsh or severe. We note,however, that the certificate of conviction incorrectly reflects that defendant was sentenced to anindeterminate term of 15 years to life for the criminal possession of a weapon count, and it musttherefore be amended to reflect that defendant was sentenced to a determinate term of 15 yearsfor that count (see generally People vSaxton, 32 AD3d 1286 [2006]).
We have reviewed defendant's remaining contentions and conclude that they are eitherunpreserved or lacking in merit. Present—Scudder, P.J., Hurlbutt, Martoche, Green andGorski, JJ.