| People v Santana |
| 2008 NY Slip Op 07377 [55 AD3d 1338] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Albert Santana,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), renderedNovember 24, 2004. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, attempted robbery in the first degree (two counts), criminal possession of a weapon in thesecond degree (two counts), and criminal possession of a weapon in the third 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, inter alia, onecount of murder in the second degree (Penal Law § 125.25 [3]) and two counts of attemptedrobbery in the first degree (§§ 110.00, 160.15 [2]), defendant contends that CountyCourt erred in allowing the People to present the testimony of the jailhouse informant's attorney. Wereject that contention. The only ground for the alleged inadmissibility of that testimony that is preservedfor our review is that it was directed at a collateral issue, and that ground lacks merit (see generallyPeople v Aska, 91 NY2d 979, 981 [1998]; People v Heslop, 48 AD3d 190, 196-197 [2007], lv denied 10NY3d 935 [2008]). Even assuming, arguendo, that the remaining grounds advanced by defendant arepreserved for our review, we conclude that they are lacking in merit as well. Contrary to defendant'scontention, the informant's attorney did not testify that she or any prosecutor believed the informant orhis account of defendant's crimes to be credible. Rather, she testified only that, pursuant to hiscooperation agreement, the informant was required "to provide truthful cooperation" at defendant's trialin order to receive a downward departure of his federal sentence. Inasmuch as the informant had notyet testified, his attorney could not and, indeed, did not offer any opinion whether the informant hadprovided such truthful cooperation. We thus conclude that the attorney did not implicitly testifyconcerning the informant's credibility in violation of the Confrontation Clause or the advocate-witnessrule (cf. United States v Roberts, 618 F2d 530 [1980]), nor did her testimony usurp the jury'sfunction to assess the informant's credibility (see People v Hayes, 226 AD2d 1055, 1056[1996] lv denied 88 NY2d 936 [1996]). Further, defendant raised the issue of the informant'smotive for testifying and his credibility, and thus, "the People were properly permitted to elicit thebolstering aspect of the cooperation agreement, i.e., the promise by the [informant] to testify truthfully"(Hayes, 226 AD2d at 1055; see People v Perez, 292 AD2d 859, 860 [2002], lvdenied 98 NY2d 679 [2002]).[*2]
Contrary to defendant's further contention, the prosecutor didnot engage in prosecutorial misconduct on summation by vouching for the credibility of the informant.Rather, the prosecutor's comments were a fair response to defense counsel's attacks on the informant'scredibility on summation (see People v Halm, 81 NY2d 819, 821 [1993]; People v West, 4 AD3d 791, 792[2004]). Defendant failed to preserve for our review his remaining contentions with respect to allegedprosecutorial misconduct on summation (seegenerally People v Romero, 7 NY3d 911, 912 [2006]), and we decline to exercise ourpower to review those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Defendant made only general motions to dismiss at the close of the People's case andat the close of proof and thus failed to preserve for our review his challenge to the legal sufficiency ofthe evidence (see People v Gray, 86 NY2d 10, 19 [1995]; People v Dennard, 39 AD3d 1277,1278 [2007], lv denied 9 NY3d 842 [2007]). In any event, that challenge lacks merit (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's furthercontentions, the verdict is not against the weight of the evidence (see generally id.), and thesentence is not unduly harsh or severe. Present—Centra, J.P., Lunn, Peradotto, Green and Pine,JJ.