| People v Wall |
| 2012 NY Slip Op 01290 [92 AD3d 812] |
| February 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesWall, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle,J.), rendered December 13, 2009, convicting him of murder in the second degree (two counts),kidnapping in the first degree (two counts), and kidnapping in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt oftwo counts of murder in the second degree is unpreserved for appellate review since he did notraise in the Supreme Court the specific ground that he now raises on appeal (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]; People vBurgess, 75 AD3d 650 [2010]). In any event, the contention is without merit. Viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt oftwo counts of murder in the second degree beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as tomurder in the second degree, kidnapping in the first degree, and kidnapping in the second degreewas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that he was entitled to a charge on circumstantial evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Capehart, 61 AD3d 885,886 [2009]) and, in any event, is without merit. Where proof of all elements of a charge is basedwholly on circumstantial evidence, the jury should be given a circumstantial evidence charge(see People v Daddona, 81 NY2d 990 [1993]; People v Johnson, 293 AD2d 489[2002]). However, where a charge is supported with both circumstantial and direct evidence, thetrial court need not so instruct the jury (see People v Daddona, 81 NY2d 990 [1993]; People v Washington, 45 AD3d880 [2007]; People v Johnson, 293 AD2d 489 [2002]). Here, there was directevidence of the defendant's guilt provided by the testimony of the surviving kidnapping victimand the codefendant.
The defendant was, as a matter of fundamental fairness, entitled to a copy of a prior [*2]statement of a witness who testified on his behalf at trial, as theprosecutor used that prior statement to impeach the witness during cross-examination (seePeople v Barbera, 220 AD2d 601, 602 [1995]; People v Gladden, 72 AD2d 568, 569[1979]). Under the circumstances of this case, however, the error does not require reversal(see People v Barbera, 220 AD2d at 602; People v Gladden, 72 AD2d at 569;cf. People v Delosanto, 307 AD2d 298 [2003]).
The defendant's contention that the counts of murder in the second degree and kidnapping inthe first degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2]; People v Clymer, 26 AD3d443 [2006]) and, in any event, without merit (see People v Saunders, 290 AD2d 461,463 [2002]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Roman andSgroi, JJ., concur.