| People v Gross |
| 2010 NY Slip Op 02357 [71 AD3d 1526] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Douglas D.Gross, Appellant. |
—[*1] Douglas D. Gross, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered November 1, 2005. The judgment convicted defendant, upon a jury verdict, of murderin the second degree and manslaughter in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentences imposed on the two counts of manslaughter in the first degree and asmodified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County,for resentencing on those counts.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofone count of murder in the second degree (Penal Law § 125.25 [1]) and two counts ofmanslaughter in the first degree (§ 125.20 [1]). At the outset, we reject the contention ofdefendant in his main and pro se supplemental briefs that Supreme Court committed reversibleerror in denying his request for a missing witness charge. In support of that contention,defendant asserts for the first time on appeal that the testimony of the proposed witness wouldhave been noncumulative and favorable to the People, and thus defendant's present assertions arenot preserved for our review (see People v Porter, 268 AD2d 538 [2000], lvdenied 95 NY2d 802 [2000]). In any event, we conclude that defendant was not entitled to amissing witness charge inasmuch as he failed to make a prima facie showing that the testimonyof the proposed witness would have been favorable to the People (see People v Wynn,277 AD2d 946, 946-947 [2000], lv denied 96 NY2d 765 [2001]; see generally Peoplev Savinon, 100 NY2d 192, 197 [2003]).
Further, we reject the implicit contention of defendant that the verdict is repugnant orinconsistent insofar as he was acquitted of criminal possession of a weapon in the second degreeunder Penal Law § 265.03 (former [2]) and convicted of murder in the second degree andmanslaughter in the first degree. The charges of which defendant was convicted do not containthe requirement of possession of a loaded firearm, and thus it cannot be said that "acquittal onone crime as charged to the jury is conclusive as to a necessary element of the other crime[s], ascharged, for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7[1981], rearg denied 55 NY2d 1039 [1982]; see generally People v Malave, 52 AD3d 1313 [2008], lvdenied 11 NY3d 790 [2008]). [*2]Viewing the evidence inlight of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
We agree with defendant, however, that the court erred in limiting the cross-examination ofan accomplice of defendant. " '[C]urtailment [of cross-examination] will be judged improperwhen it keeps from the jury relevant and important facts bearing on the trustworthiness of crucialtestimony' " (People v Smith, 12AD3d 1106, 1106 [2004], lv denied 4 NY3d 767 [2005]), and the court abused itsdiscretion in limiting defendant's cross-examination with respect to issues bearing on thetrustworthiness of that accomplice (seegenerally People v Corby, 6 NY3d 231, 234-235 [2005]). Nevertheless, we concludethat the curtailment of the cross-examination of that accomplice is harmless beyond a reasonabledoubt (see People v Dennard, 39AD3d 1277, 1279 [2007], lv denied 9 NY3d 842 [2007]; see generally People vCrimmins, 36 NY2d 230, 237 [1975]).
Finally, both defendant and the People agree that the court erred in failing to impose a periodof postrelease supervision in sentencing defendant on the counts of manslaughter in the firstdegree based on the version of Penal Law § 70.45 in effect when the instant crimes werecommitted, thereby rendering the sentence with respect to those counts illegal. We thus modifythe judgment by vacating the sentences imposed on the two counts of manslaughter in the firstdegree, and we remit the matter to Supreme Court for resentencing on those counts (see People v Sparber, 10 NY3d457, 468-469 [2008]; People vAllen, 57 AD3d 1383, 1384 [2008]).
With respect to the remaining contentions of defendant in his pro se supplemental brief, wenote that defendant failed to preserve for our review his contentions that the court erred in failingto provide adequate responses to several jury requests for clarification, that he was sentenced incontravention of Apprendi v New Jersey (530 US 466 [2000]), and that the prosecutorgave inadequate instructions to the grand jury (see CPL 470.05 [2]), and we decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). We have reviewed the remaining contentions of defendant inhis pro se supplemental brief and conclude that they are without merit.Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.