| People v Peters |
| 2012 NY Slip Op 05931 [98 AD3d 587] |
| August 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tyrone Peters, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.),rendered July 23, 2004, convicting him of murder in the first degree and criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing, of that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Ordered that the judgment is affirmed.
On March 22, 2003, the defendant was involved in a minor car accident with WinstonWilliams; at the scene of the accident he allegedly threatened Williams with a gun in order tocoerce him into paying for the damage to the defendant's car. The police arrested the defendant atthe accident scene for possession of a weapon. On March 26, 2003, Williams testified about theincident at a grand jury proceeding. On March 31, 2003, Williams was shot and killed, and thedefendant was subsequently arrested and charged with his murder. After trial the defendant wasconvicted, inter alia, of murder in the first degree. We affirm.
"The credibility findings of hearing courts are entitled to deference on appeal, but this Courtmay make its own findings of fact if it determines that the hearing court incorrectly assessed theevidence" (People v McClendon, 92AD3d 959, 960 [2012], lv denied 19 NY3d 865 [2012]). Here, following a pretrialhearing regarding that branch of the defendant's omnibus motion which was to suppress a gunrecovered by the police, the Supreme Court correctly determined that there was no basis to grantsuppression. The officer who testified at the suppression hearing established that she receivedinformation from an identified citizen that the defendant possessed the gun which was thereafter[*2]recovered by the officer from a vehicle owned by thedefendant (see People v LaFontant,46 AD3d 840, 842 [2007]; People v Williams, 301 AD2d 543 [2003]). Thedefendant's contention that the court improperly interjected itself in the proceedings and thequestioning of the police officer is without merit (see People v Yut Wai Tom, 53 NY2d44, 57 [1981]; People v Button, 56AD3d 1043, 1045 [2008]).
The Supreme Court correctly admitted the grand jury testimony of the deceased victim intoevidence and allowed it to be read to the jury. The People established, by clear and convincingevidence, that the defendant was involved in the murder of the victim, thereby permitting thePeople to offer at trial the victim's grand jury testimony with respect to the weapon possessioncharge (see People v Bosier, 6NY3d 523, 527 [2006]; People v Geraci, 85 NY2d 359, 366-367 [1995]; People v McCrae, 69 AD3d 759,759-760 [2010]). The defendant's contention that the admission of the grand jury testimony of thedeceased victim was improper based on Crawford v Washington (541 US 36 [2004]) isunpreserved for appellate review, and, in any event, without merit. Also without merit is thedefendant's contention that the People violated the terms of a stipulation regarding how thedeceased's grand jury testimony would be read at trial.
The Supreme Court correctly denied the defendant's challenge to the prosecutor's exercise ofa peremptory challenge with respect to an African-American prospective juror. The defendant didnot demonstrate circumstances supporting a prima facie showing that would establish a pattern ofpurposeful exclusion sufficient to raise an inference of racial discrimination (see Batson vKentucky, 476 US 79, 96-97 [1986]; People v McCall, 80 AD3d 626, 627 [2011]; People v Doe, 78 AD3d 1072[2010]).
The defendant further contends that reversal is warranted because he allegedly was absentfrom the courtroom when the Supreme Court provided supplemental instructions to thedeliberating jury. However, the presumption of regularity which attaches to judicial proceedingscan only be overcome by substantial evidence (see People v Velasquez, 1 NY3d 44, 48 [2003]; People vHarrison, 85 NY2d 794, 795 [1995]). Here the defendant failed to come forward withsubstantial evidence to rebut the presumption of regularity or otherwise establish that he wasabsent from the courtroom during the supplemental instructions (see People v Velasquez,1 NY3d at 48; People v Andrew, 1NY3d 546, 547 [2003]; People vBogan, 78 AD3d 855 [2010]). The defendant's related claim that reversal is warrantedbecause a court officer engaged in an improper communication with deliberating jurors isunpreserved for appellate review, and in any event, without merit (see People v Kelly, 5 NY3d 116[2005]). Similarly without merit is the defendant's contention that the trial court improperlyaddressed two alternate jurors in the absence of the defendant, his counsel, and the prosecutor, asthe defendant and his counsel explicitly agreed to such procedure.
The defendant's contention that the prosecutor improperly cross-examined one of thedefendant's witnesses with respect to her failure to go to the police with exculpatory informationis unpreserved for appellate review (see CPL 470.05 [2]; People v Miller, 89NY2d 1077, 1079 [1997]). In any event, this contention is without merit (see People vDawson, 50 NY2d 311, 321 [1980]; People v Quinney, 305 AD2d 1044, 1045[2003]; People v Figueroa, 181 AD2d 690 [1992]).
The defendant's contention that he was denied a fair trial based upon several allegedlyimproper comments made by the prosecutor during his summation is without merit. Theprosecutor's comments relating to the main defense witness were not made in bad faith,constituted an effort to persuade the jury to draw inferences supporting the People's position, anddid not constitute an impermissible effort to shift the burden of proof (see People v Guevara-Carrero, 92AD3d 693, 694-695 [2012]; Peoplev Gross, 78 AD3d 1196, 1197 [2010]; People v Williams, 13 AD3d 660 [2004]). In addition, theprosecutor's comment that it was the defendant's counsel's job to call the People's main witnesses"liars" was an isolated inflammatory remark which does not require reversal (see [*3]People v Whaley, 70 AD3d 570, 571 [2010]).Furthermore, although the defendant registered an objection to the prosecutor's commentsregarding the People's two main witnesses, that the fact that they came forward was "a scaryproposition," and that the jury should "not penalize these people for having done the right thing,the courageous thing," the defendant did not request curative instructions or move for a mistrialafter the objection was sustained. Thus, the trial court's response to the objection must be deemedto have corrected any error to the defendant's satisfaction (see People v Heide, 84 NY2d943, 944 [1994]). The remaining summation comments challenged by the defendant constitutedfair comment on the evidence or were a fair response to defense counsel's summation (seePeople v Galloway, 54 NY2d 396, 401 [1981]; People v Grant, 94 AD3d 1139 [2012]).
The defendant's contentions that the People failed to meet their obligations pursuant toPeople v Rosario (9 NY2d 286 [1961], cert denied 368 US 866 [1961]), and thatthe trial court should have given an adverse inference charge in this regard, are without merit(see People v Alvarez, 70 NY2d 375, 381 [1987]; cf. People v Campbell, 186AD2d 212, 213 [1992]). Finally, contrary to the defendant's contention, the Supreme Courtcorrectly ruled that he was not entitled to a missing witness charge (see People vGonzalez, 68 NY2d 424, 427 [1986]).
The defendant was afforded the effective assistance of trial counsel (see People v Taylor, 1 NY3d 174,176 [2003]; People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54NY2d 137, 147 [1981]; People vBrooks, 89 AD3d 746, 746 [2011]). Dillon, J.P., Belen, Austin and Sgroi, JJ., concur.