| People v Toussaint |
| 2010 NY Slip Op 04825 [74 AD3d 846] |
| June 1, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lesley Toussaint, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.),rendered June 27, 2002, convicting him of murder in the first degree (three counts), murder inthe second degree (two counts), robbery in the first degree (two counts), robbery in the seconddegree (three counts), and arson in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
In order for a statement to be admissible under the exception to the hearsay rule fordeclarations against penal interest, a four-part test must be satisfied: (1) the declarant must beunavailable to testify at the defendant's trial, (2) the declarant must have competent knowledgeof the facts, (3) the declarant must have known at the time the statement was made that it wasagainst his or her penal interest, and (4), most important, there must be independent supportingproof indicating that the statement is trustworthy and reliable (see People v Ennis, 11 NY3d 403,412-413 [2008], cert denied 556 US —, 129 S Ct 2383 [2009]; People vBrensic, 70 NY2d 9, 15 [1987]; People v Settles, 46 NY2d 154, 167 [1978]; People v Singh, 47 AD3d 733,734 [2008], cert denied 555 US —, 129 S Ct 570 [2008]). Here, the trial courtproperly declined to admit two statements by a codefendant offered by the defendant. Thedefendant failed to establish that the declarant was unavailable to testify at his trial, and therewas no independent supporting proof indicating that the statements were trustworthy andreliable. The declarant specifically repudiated one of the statements at his plea allocution in opencourt. Moreover, the other statement was not shown to be against the declarant's penal interest,as it was largely exculpatory (see People v Singh, 47 AD3d at 734).
The defendant's contention that the trial court should have questioned a dischargedprospective juror whose name was on the "crime scene log" on the day of the incident is basedon speculation and is without merit (see People v Diaz, 289 AD2d 184, 185 [2001]).Moreover, the trial court's marshaling of possible corroborating evidence in its charge onaccomplice corroboration did not create an imbalance which prejudiced the defendant or placedundue emphasis on the People's contentions. The trial court's marshaling of the possiblecorroborating evidence served to explain the application of the law to the facts (see People v Fuentes, 52 AD3d1297, 1299 [2008]; People v Adams, 278 [*2]AD2d920, 922 [2000]). Moreover, viewing the language of the accomplice corroboration charge as awhole, the instruction was proper (see 1 CJI[NY] 7.52, at 337-339; People vGlasper, 52 NY2d 970, 971 [1981]; People v Lawson, 40 AD3d 657, 658 [2007]; People v Pedro, 36 AD3d 832,833 [2007]; People v Konigsberg, 137 AD2d 142, 147 [1988]).
The trial court did not improvidently exercise its discretion in permitting the accomplicewitness to be called out of turn, or in denying the defense counsel's request for an adjournmentprior to the completion of the cross-examination of that witness (see People v Singleton,41 NY2d 402, 405 [1977]; People v Olsen, 34 NY2d 349, 353 [1974]; People v Duplessis, 16 AD3d 846,847 [2005]; People v Braxton, 254 AD2d 365, 366 [1998]).
The defendant was afforded the effective assistance of trial counsel (see People v Ennis, 11 NY3d 403[2008]; People v Turner, 5 NY3d476, 480 [2005]; People v Benevento, 91 NY2d 708 [1998]).
The trial court's rulings, its questioning of witnesses during direct and cross-examination,and its occasional admonitions to the defendant's trial counsel did not exhibit bias. While someof the trial court's comments might have been better left unsaid, they do not warrant reversal(see People v Moulton, 43 NY2d 944, 946 [1978]; People v Majors, 64 AD3d 1085, 1087 [2009]; People v A.S. Goldmen, Inc., 9 AD3d283, 285 [2004]).
The defendant's contention that the evidence presented to the grand jury was insufficient tosupport the charge of arson in the second degree is not reviewable as the judgment of convictionwith respect to that charge was based upon legally sufficient trial evidence (see People v Ballinger, 62 AD3d895, 896 [2009]).
Contrary to the defendant's contention, the fact that the sentence imposed after trial wasgreater than the sentence offered during plea negotiations is no indication that the defendant waspunished for asserting his right to proceed to trial (see People v Hurley, 75 NY2d 887[1990]; People v Pena, 50 NY2d 400, 411 [1980], cert denied 449 US 1087[1981]; People v Smith, 49 AD3d904, 906 [2008]). Moreover, the sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review. Dillon, J.P.,Santucci, Hall and Lott, JJ., concur.