| People v Kennedy |
| 2010 NY Slip Op 00541 [69 AD3d 881] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nicholas G. Kennedy, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo,J.), rendered April 25, 2008, convicting him of criminal possession of a controlled substance inthe second degree, criminal possession of a controlled substance in the third degree, criminalpossession of marijuana in the fifth degree, failure to signal, and failure to display a lit headlamp,upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of8½ years for criminal possession of a controlled substance in the second degree, sevenyears for criminal possession of a controlled substance in the third degree, three months forcriminal possession of marijuana in the fifth degree, one day for failure to signal, and one day forfailure to display a lit headlamp.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the determinate term of imprisonment of 8½ years imposed for criminalpossession of a controlled substance in the second degree to a determinate term of imprisonmentof five years, and by reducing the determinate term of imprisonment of seven years imposed onthe conviction of criminal possession of a controlled substance in the third degree to adeterminate term of imprisonment of three years; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the grand jury proceeding did not fail to conform tothe requirements of CPL article 190 to such a degree that the integrity thereof was impaired, and,even if some of the testimony elicited was inadmissible, no prejudice to the defendant could haveresulted therefrom (see CPL 210.20 [1] [c]; 210.35 [5]; People v Huston, 88NY2d 400, 409 [1996]).
The trial court did not err in allowing the People to submit evidence of cocaine residue in thedefendant's pants pocket. Contrary to the defendant's assertion, this evidence was not evidence ofa separate uncharged crime (cf. Peoplev Resek, 3 NY3d 385, 387 [2004]; People v Tosca, 98 NY2d 660, 661 [2002]),but, rather, was evidence that he possessed the cocaine with which he was charged withpossessing in the present case.
The defendant's contention that an expert police witness's testimony invaded the jury'sexclusive province of determining an ultimate fact issue in the case (see People v Goodwine,177 AD2d 708, 709 [1991]), is unpreserved for appellate review (see CPL 470.05[2]). In any event, even if the testimony was improper, its admission was harmless, as there wasoverwhelming evidence of the defendant's guilt, [*2]and nosignificant probability that the error contributed to his convictions (see People v Crimmins,36 NY2d 230, 241-242 [1975]).
Contrary to the defendant's assertion, the assistant district attorney did not "dr[i]ve a keydefense witness from the witness stand through intimidation" (cf. Webb v Texas, 409 US95, 98 [1972]; People v Shapiro, 50 NY2d 747, 760 [1980]; People v Ramos, 63AD2d 1009 [1978]). Rather, the record shows that defense counsel chose not to call the witnessto testify. Moreover, the Supreme Court properly conducted an inquiry to insure that thepotential witness, who claimed that the narcotics were his, was aware of the possible legalconsequences of giving testimony and of his privilege to refuse to testify (see People vSiegel, 87 NY2d 536, 543 [1995]; People v Lee, 58 NY2d 773, 775 [1982]).Furthermore, the extensive questioning by the potential witness's attorney was necessitated bythe potential witness's mental illness.
The defendant contends that the prosecutor's summation deprived him of a fair trial. Thechallenged remarks, however, were responsive to defense counsel's opening and closingstatements (see People v Halm, 81 NY2d 819, 821 [1993]; People v Molinaro, 62 AD3d 724,724-725 [2009]). Furthermore, the prosecutor did not misstate the law with respect to theso-called automobile presumption (see Penal Law § 220.25).
The sentences imposed on the convictions for criminal possession of a controlled substancein the second degree and criminal possession of a controlled substance in the third degree wereexcessive to the extent indicated herein (see People v Suitte, 90 AD2d 80 [1982]).Rivera, J.P., Dickerson, Hall and Lott, JJ., concur.