| People v Torres |
| 2009 NY Slip Op 02847 [61 AD3d 489] |
| April 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JasonTorres, Appellant. The People of the State of New York, Respondent, v Luis Vives,Appellant. |
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Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling ofcounsel), for Luis Vives, appellant. Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel),for respondent.
Judgments, Supreme Court, New York County (Maxwell Wiley, J.), rendered December 21,2006, convicting defendants, after a joint jury trial, of criminal possession of a controlledsubstance in the second degree, robbery in the first and second degrees and burglary in the firstdegree, and sentencing defendant Torres, as a second felony offender, to an aggregate term of 12years, and sentencing defendant Vives, as a second violent felony offender, to an aggregate termof 17 years, unanimously affirmed.
Since defendants did not exhaust their peremptory challenges, their claim that the courtshould have granted certain challenges for cause is foreclosed (CPL 270.20 [2]; People vLynch, 95 NY2d 243, 248 [2000]). There is no reason to depart from the express terms ofthe statute, and we reject defendants' argument to the contrary.
Defendants' absence from an off-the-record discussion and initial colloquy concerning thePeople's request to introduce evidence that Vives threatened a witness did not deprive defendantsof their constitutional and statutory rights to be present at all material stages of a trial (seePeople v Velasco, 77 NY2d 469, 473 [1991]). The discussion and colloquy were merelypreliminary to a subsequent proceeding in open court in defendants' presence, at which they hada full opportunity to provide meaningful input. Any violation of defendants' right to be present[*2]at those preliminary proceedings was de minimis, and thesuggestion that defendants could have altered the outcome if present is entirely speculative(see People v Roman, 88 NY2d 18, 26-27 [1996]).
We reject Vives's argument that his threat to kill a witness should not have been admitted;that evidence was highly probative of his consciousness of guilt (see e.g. People vRosario, 309 AD2d 537, 538 [2003], lv denied 1 NY3d 579 [2003]). Vives expresslywaived any limiting instruction regarding this evidence (see People v Miller, 232 AD2d247 [1996], lv denied 89 NY2d 1038 [1997]), and his argument to the contrary is withoutmerit. In any event, the absence of a limiting instruction was harmless.
Torres's argument that he was entitled to introduce an unavailable witness's statement as aremedy for the prosecutor's alleged untimely disclosure of Brady material (Brady vMaryland, 373 US 83 [1963]) is unavailing. Initially, we conclude that the witness'sstatement tended to corroborate the prosecution's case rather than providing exculpatoryevidence. Furthermore, there is no reason to believe that earlier disclosure of the informationwould have resulted in the witness being available to testify (see e.g. People vBuie, 289 AD2d 140 [2001], lv denied 98 NY2d 695 [2002]). The court properlyexercised its discretion in declining to admit the witness's hearsay statement, and Torres has notestablished that he was constitutionally entitled to introduce it.
We reject Torres's claim that the verdict was against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerningcredibility.
We perceive no basis for reducing either defendant's sentence. Concur—Saxe, J.P.,Friedman, Sweeny, Acosta and Freedman, JJ.