| People v Genyard |
| 2011 NY Slip Op 04699 [84 AD3d 1398] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Donnell Genyard, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.),rendered September 17, 2007, convicting him of manslaughter in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution gave the defendant "a reasonable timeto exercise his right to appear as a witness" and testify before the grand jury (CPL 190.50 [5] [a]).The evidence in the record supports the Supreme Court's conclusions that the defendant wasaccorded a meaningful opportunity to consult with counsel and determine whether he wouldtestify before the grand jury, and that his own dilatory actions were the cause of his failure totestify (see People v Sawyer, 96 NY2d 815, 816-817 [2001]; People v Dunham,292 AD2d 269 [2002]; People v Clark, 267 AD2d 4 [1999]; People v Savareese,258 AD2d 484, 484-485 [1999]). Accordingly, the defendant's motion to dismiss the indictmentpursuant to CPL 190.50 was properly denied.
Contrary to the defendant's contention, raised in his pro se supplemental brief, the SupremeCourt properly denied that branch of his second motion which was to dismiss the indictmentpursuant to CPL 210.35 (5), in which he argued that perjured testimony impaired the integrity ofthe grand jury proceeding. The defendant failed to establish that the grand jury testimony of aprosecution witness was perjured (see People v Hansen, 290 AD2d 47, 51-52 [2002],affd 99 NY2d 339 [2003]; People v Bennett, 244 AD2d 923, 925 [1997];People v Avilla, 212 AD2d 800, 800-801 [1995]; People v Mariani, 203 AD2d717, 719 [1994]; cf. People v Pelchat, 62 NY2d 97, 106-107 [1984]). Furthermore, thedefendant's contention that the integrity of the grand jury proceeding was impaired by the failureof the prosecution to present certain exculpatory evidence is unpreserved for appellate review, ashe did not identify the evidence in his motion papers (see CPL 470.05 [2]; People vBryan, 50 AD3d 1049, 1050 [2008]). In any event, the defendant's contention is [*2]without merit, as the evidence in question was not entirelyexculpatory and would not have materially influenced the grand jury's investigation (seePeople v Bryan, 50 AD3d at 1050; People v Williams, 298 AD2d 535 [2002]).
The defendant challenges the legal sufficiency of the evidence on the ground, raised in hispro se supplemental brief, that he did not act with intent to cause serious physical injury to thedecedent and on the ground, raised in his main brief, that the testimony of a witness to whom thedefendant made an admission of guilt was incredible as a matter of law. However, only theformer ground is preserved for appellate review (see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Gray, 86 NY2d 10, 19-21 [1995];People v Basagoitia, 55 AD3d 619, 620 [2008]). In any event, viewing the evidence inthe light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]),we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004], certdenied 542 US 946 [2004]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant waived his argument that the Supreme Court erred in permitting theprosecution to elicit evidence of uncharged crimes that he committed by expressly consenting tothe Supreme Court's ruling in light of his intention to use the evidence on cross-examination ofthe prosecution's witnesses and by then using that evidence on cross-examination (see Peoplev Stalter, 77 AD3d 776, 777 [2010]; People v Grant, 54 AD3d 967 [2008];People v Bryan, 50 AD3d at 1050-1051). In any event, the Supreme Court properlypermitted the prosecution to introduce the uncharged crimes evidence because it providednecessary background in explaining the relationships among the individuals, completed thenarrative of the episode, and was inextricably interwoven with the crime charged (see Peoplev Dorm, 12 NY3d 16, 19 [2009]; People v Till, 87 NY2d 835, 837 [1995];People v Vails, 43 NY2d 364, 368 [1977]; People v Dahlbender, 23 AD3d 493,494 [2005]; People v Taylor, 302 AD2d 480, 481 [2003]; People v Samlal, 292AD2d 400 [2002]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Dillon, J.P., Belen, Sgroi and Miller, JJ., concur.