| People v Green |
| 2010 NY Slip Op 05449 [74 AD3d 1899] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tremaine A.Green, Appellant. |
—[*1] Tremaine A. Green, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered July2, 2008. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [1]) arising out of the early morningshooting of a man on a street in Geneva. By failing to renew his motion for a trial order ofdismissal after presenting evidence, defendant failed to preserve for our review his contentionthat the evidence at trial is legally insufficient to establish that he intended to kill the victim(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]).In any event, we conclude that the evidence, viewed in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support theintent element of the crime of which defendant was convicted. It was undisputed at trial thatdefendant retrieved an assault rifle from his house after one of his friends had an altercation witha friend of the victim, and that defendant was present in the area where the fatal shot was fired.Although defendant testified that he handed the assault rifle to another individual, who then firedseveral times, there was ample evidence that defendant himself committed the shooting. We notein particular that a prosecution witness who was one of defendant's friends testified that he sawdefendant pull the trigger. Defendant's intent to kill the victim "may be inferred from defendant'sconduct as well as the circumstances surrounding the crime" (People v Price, 35 AD3d 1230, 1231 [2006], lv denied 8NY3d 926 [2007]). Viewing the evidence in light of the elements of the crime as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we also reject defendant's contention that the verdict is against theweight of the evidence.
Defendant further contends that the People's motion to disqualify his trial counsel"unreasonably interfered" with his right to counsel by "paraly[zing] the defense for almost amonth." We likewise reject that contention. The motion was appropriate in light of the potentialconflict of interest arising from the possibility that defense counsel would be representing a[*2]witness to the crime as well as defendant. A conflict ofinterest exists when a defendant's attorney represents a prosecution witness and, indeed, theprosecution has "an affirmative duty to bring the facts of the potential conflict to the attention ofthe trial court" (People v Green, 145 AD2d 929, 930 [1988]). To the extent thatdefendant contends that the defense was "paraly[zed] for almost a month" by virtue of themotion, we note that the motion was filed seven months before the commencement of trial andwas denied by County Court two months after it was filed, thus affording defense counsel ampletime in which to prepare for trial. We also reject the contention of defendant that the court erredin denying his request for a continuance on the first day of trial. "The decision whether to grantan adjournment is ordinarily committed to the sound discretion of the trial court" (People vSpears, 64 NY2d 698, 699 [1984]), and we perceive no abuse of discretion in this case.
We agree with defendant, however, that the court erred in limiting his cross-examination of apolice investigator concerning the statement he made to the investigator in which he denied thathe shot the victim. At trial, the People introduced inculpatory portions of defendant's statementand thus defendant was entitled to admission of the exculpatory portions of the statement as well(see People v Rodriguez, 188 AD2d 566, 567 [1992]). Nevertheless, we conclude thatthe error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).The proof of defendant's guilt is overwhelming, and there is no significant probability thatdefendant would have been acquitted had the court properly admitted the exculpatory portions ofdefendant's statement in evidence (see People v Perez, 299 AD2d 197 [2002], lvdenied 99 NY2d 618 [2003]). The jury could readily infer from that part of the statement ofdefendant to the investigator that was admitted in evidence that he denied shooting the victim,inasmuch as defendant told the investigator that he saw an individual exit a silver vehicle andthat he then heard shots being fired. We further note that defendant testified at trial that he didnot shoot the victim. We also reject defendant's challenge to the severity of the sentence.
Contrary to the contention of defendant in his pro se supplemental brief, the People did notfail to turn over Brady material in a timely manner. Even assuming, arguendo, that thematerial at issue was exculpatory, we conclude on the record before us that defendant received it"as part of the Rosario material provided to him and was given a meaningful opportunityto use the exculpatory evidence" (People v Middlebrooks, 300 AD2d 1142, 1143-1144[2002], lv denied 99 NY2d 630 [2003]). Contrary to the further contention of defendantin his pro se supplemental brief, the court did not err in sua sponte advising a prosecutionwitness that his trial testimony on direct examination appeared to contradict his grand jurytestimony and that he may wish to consult with an attorney under those circumstances. "Ourprecedents approve the conduct of a trial court in advising a witness, who it can be reasonablyanticipated will give self-incriminating testimony, of the possible legal consequences of givingsuch testimony and of the witness' Fifth Amendment privilege to refuse to testify" (People vSiegel, 87 NY2d 536, 542-543 [1995]), and here the court in effect did so by advising thewitness that he may wish to consult an attorney.
Finally, we have reviewed the remaining contentions of defendant, including those raised inhis pro se supplemental brief, and conclude that they are without merit. Present—Centra,J.P., Peradotto, Carni, Lindley and Pine, JJ.