| People v Clarke |
| 2008 NY Slip Op 07737 [55 AD3d 1447] |
| October 10, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alvin Clarke,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMay 17, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree, criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, assault in the first degree (Penal Law § 120.10 [3]). Defendant's first trial endedin a mistrial as the result of a deadlocked jury, and the People filed a second indictment chargingdefendant with the same offenses as those charged in the first indictment. Defendant wasarraigned on the second indictment, and the original indictment was dismissed. Defendant thenmoved, inter alia, to dismiss the second indictment as unauthorized. The prosecutor agreed withdefendant that the second indictment was improper and consented to its dismissal, and theprosecutor stated that the People would proceed with the original indictment. County Courtthereupon dismissed the second indictment without prejudice, with leave to re-present, but theprosecutor thereafter asked the court to withdraw its statement granting leave to re-present, towhich the court responded, "very well." The prosecutor then stated on the record that "I want therecord to be clear, we're proceeding on the original indictment." Defendant now contends onappeal that the court lacked jurisdiction to try him on the original indictment because it wassuperseded and dismissed by the second indictment. We reject defendant's contention. As thePeople conceded in response to defendant's motion prior to the commencement of the trial that isthe subject of this appeal, the second indictment was improper. The trial on the originalindictment had already commenced (see CPL 200.80) and, in view of the ongoingproceedings before the court, it cannot be said that the court dismissed the original indictment orauthorized the People to obtain a new accusatory instrument pursuant to CPL 40.30 (4). Thesecond indictment was therefore a nullity, and the People were limited to retrying defendant onthe original indictment (see Matter of Jadoo v Griffin, 267 AD2d 311 [1999]; Matterof De Canzio v Kennedy, 67 AD2d 111, 120-121 [1979], lv denied 47 NY2d 709[1979]; see also People v Dexter, 259 AD2d 952, 952-953 [1999], affd 94 NY2d847 [1999]).[*2]
Also contrary to defendant's contention, the retrial did notviolate the prohibition against double jeopardy. According to defendant, the court erred at thefirst trial in allowing the People to present the grand jury testimony of one of their witnesses aswell as the statement of that witness to the police, and the remaining evidence was legallyinsufficient. We reject that contention. The grand jury testimony of the witness in question andhis statement to the police were properly admitted in evidence because "[t]he People establishedby clear and convincing evidence at the Sirois hearing . . . that misconductby defendant or others acting at his behest caused that witness to be unavailable to testify atdefendant's trial" (People v Washington, 34 AD3d 1193, 1194 [2006], lv denied 8NY3d 928 [2007]). Although there was no direct evidence of a threat against that witness, thecourt properly relied on the circumstantial evidence that supported such an inference. Thatevidence consisted, inter alia, of a recorded conversation of defendant while he was incarceratedwith a person outside of the jail in which defendant gave that person the phone number of thewitness in question and stated that he could not have that witness appear at his trial (seePeople v Geraci, 85 NY2d 359, 369-370 [1995]; People v Alston, 27 AD3d 311[2006], lv denied 7 NY3d 751 [2006]). We conclude that the evidence at the first trialwas legally sufficient, and thus the retrial did not violate the prohibition against double jeopardy(see People v Dennard, 39 AD3d 1277, 1278 [2007], lv denied 9 NY3d 842[2007]; People v Hogan, 15 AD3d 944 [2005], lv denied 5 NY3d 763 [2005];People v Smith, 8 AD3d 965 [2004]).
Defendant failed to preserve for our review his contention that he was denied a fair trial byprosecutorial misconduct (see People v Reddick, 43 AD3d 1334, 1336 [2007], lvdenied 10 NY3d 815 [2008]; People v Davis, 38 AD3d 1170, 1172 [2007], lvdenied 9 NY3d 842 [2007], cert denied 552 US —, 128 S Ct 713 [2007]). Inany event, none of the prosecutor's comments was " 'so egregious as to deprive defendant of hisright to a fair trial,' when viewed in the totality of the circumstances of this case" (People vMartina, 48 AD3d 1271, 1273 [2008], lv denied 10 NY3d 961 [2008]; see Peoplev Santiago, 41 AD3d 1172, 1175 [2007], lv denied 9 NY3d 964 [2007]; People vBlack, 38 AD3d 1283, 1286 [2007], lv denied 8 NY3d 982 [2007]).
Finally, defendant contends that the court erred in refusing to suppress the identification ofhim by two witnesses because the photo arrays were unduly suggestive. We reject thatcontention. Although defendant was the sole person in the photo arrays with a facial scar, the scarwas not prominent and the other individuals depicted in the photo arrays were otherwisesufficiently similar in appearance to defendant (see People v Davis, 50 AD3d 1589[2008]; People v Jamison, 291 AD2d 298 [2002], lv denied 98 NY2d 652[2002]). Present—Hurlbutt, J.P., Centra, Peradotto, Green and Gorski, JJ.