| People v Young |
| 2012 NY Slip Op 07495 [100 AD3d 1427] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v WeldonYoung, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered February 19, 2010. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]). Contrary to defendant'scontention, Supreme Court properly determined, following a Cardona hearing (seePeople v Cardona, 41 NY2d 333 [1977]), that a prosecution witness was not an agent of theprosecution when he obtained incriminating information from defendant with respect to thevictim's death. Although the witness had testified in three prior trials after advising theprosecution, while he was incarcerated, that he had information about those respective crimes(see id. at 335), the record supports the court's determination that the prosecution did notseek information from the witness, but instead passively received the information the day beforethe trial began (see People v Davis,38 AD3d 1170, 1171 [2007], lv denied 9 NY3d 842 [2007], cert denied 552US 1065 [2007]; People v Keith, 23AD3d 1133, 1134 [2005], lv denied 6 NY3d 815 [2006]). We reject defendant'sfurther contention that the prosecution suborned perjury with respect to the testimony of thatwitness (see generally People v Casillas, 289 AD2d 1063, 1064 [2001], lv denied97 NY2d 752 [2002]). Although we agree with defendant that the credibility of the witnesswas challenged with taped telephone calls from the witness to an acquaintance of the victim thatwere admitted in evidence during defendant's cross-examination of the witness, we neverthelessconclude that the record does not support a determination that the People knowingly presentedfalse testimony (see generally People v Dwyer, 234 AD2d 942, 943 [1996]). Rather, thecredibility of the witness was properly an issue for the jury, which had the opportunity to hear histestimony and the taped telephone calls (see generally People v Bleakley, 69 NY2d 490,495 [1987]).
By failing to object during summation, defendant failed to preserve for our review his furthercontention that the prosecutor committed reversible error by vouching for the credibility of thewitness during summation (see CPL 470.05 [2]; People v Hill, 82 AD3d 1715, 1715 [2011], lv denied 17NY3d 806 [2011]). In any event, we conclude that the prosecutor's remarks were a fair [*2]response to defendant's summation, which attacked the credibilityof the witness (see People v Foster,59 AD3d 1008, 1009 [2009], lv denied 12 NY3d 816 [2009]), and a fair comment onthe evidence (see Hill, 82 AD3d at 1715). Present—Scudder, P.J., Smith, Fahey,Carni and Valentino, JJ.