| People v Rogers |
| 2013 NY Slip Op 00626 [103 AD3d 1150] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vJohnny Rogers, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered November 19, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), defendant contends that the19-year preindictment delay violated his right to a speedy trial and his due process rightto prompt prosecution. We reject that contention. In examining the Taranovichfactors (People v Taranovich, 37 NY2d 442, 445 [1975]), we conclude that,although the 19-year preindictment delay was substantial, the nature of the underlyingcharge was serious, and defendant remained at liberty until he was indicted. Moreover,the People met their burden of establishing good cause for the delay (see People v Decker, 13 NY3d12, 14-16 [2009]; People vChatt, 77 AD3d 1285, 1285 [2010], lv denied 17 NY3d 793 [2011]).Indeed, they established that there was insufficient evidence to charge defendant shortlyafter the crimes occurred, and it was not until the statements of three witnesses wereobtained and DNA testing was completed that the People brought the charges againstdefendant. The People's decision to bring the charges against defendant many years later"was not an abuse of the significant amount of discretion that the People must ofnecessity have, and there is no indication that the decision was made in anything otherthan good faith" (Decker, 13 NY3d at 15). We further conclude that, while thedelay may have caused some degree of prejudice to defendant, "there is no indication thatthe defense was significantly impaired by the delay" (id.). Contrary to defendant'sfurther contention, there was no need for a Singer hearing (People vSinger, 44 NY2d 241, 255 [1978]) because no issue of fact exists regarding thecause of the delay and because the record provided County Court with a sufficient basisto determine whether the delay was justified (see People v Gathers, 65 AD3d 704, 704 [2009], lvdenied 13 NY3d 859 [2009]; cf. People v Watts, 78 AD2d 1008, 1009[1980]).
We reject defendant's contention that the court abused its discretion in denying hisrequest for an adjournment after the People turned over alleged Brady materialless than a week before the trial. " '[T]he court's exercise of discretion in denying arequest for an adjournment will not be overturned absent a showing of prejudice' " (People v Peterkin, 81 AD3d1358, 1360 [2011], [*2]lv denied 17 NY3d799 [2011]). Even assuming, arguendo, that the interdepartmental memo of the policedepartment was Brady material, we conclude that defendant had a meaningfulopportunity to use it at trial and thus was not prejudiced by the denial of his request foran adjournment.
Defendant next contends that the court erred in denying his challenges for cause totwo prospective jurors. Initially, we note that, contrary to the People's contention,defendant exhausted all of his peremptory challenges, and thus the issue is properlybefore us (see CPL 270.20 [2]). On the merits, however, we agree with thePeople that the court properly denied the challenges. It is well settled that "a prospectivejuror whose statements raise a serious doubt regarding the ability to be impartial must beexcused unless the prospective juror states unequivocally on the record that he or she canbe fair and impartial" (People v Chambers, 97 NY2d 417, 419 [2002]; see People v Harris, 19 NY3d679, 685 [2012]). Here, while the two prospective jurors stated that they knewvictims of domestic violence, nothing said by them on that issue raised a serious doubt asto their ability to render an impartial verdict (see People v Turner, 6 AD3d 1190, 1190 [2004], lvdenied 3 NY3d 649 [2004]). Their responses were unequivocal despite their use ofthe word "think" (see People vOdum, 67 AD3d 1465, 1465 [2009], lv denied 14 NY3d 804 [2010], 15NY3d 755 [2010], cert denied 562 US —, 131 S Ct 326 [2010]). Thesecond prospective juror at issue also made statements indicating that he would find apolice officer more credible than someone else. Thus, in order to avoid excusing thatjuror, it was incumbent upon the court to elicit an unequivocal assurance of theprospective juror's ability to be impartial (see People v Johnson, 17 NY3d 752, 753 [2011]), whichthe court here did. The court asked the prospective juror at issue if he would follow aninstruction that he was not to give any greater weight to a police officer's testimony, andthe prospective juror responded, "yes. If it was an order, yes, I would."
Contrary to defendant's further contention, the court properly admitted testimonyregarding prior incidents of domestic violence by defendant against the victim, i.e., hiswife, because it was probative of defendant's motive, intent, and identity (see People v Kelly, 71 AD3d1520, 1521 [2010], lv denied 15 NY3d 775 [2010]; People v Colbert, 60 AD3d1209, 1212 [2009]; Peoplev Parsons, 30 AD3d 1071, 1073 [2006], lv denied 7 NY3d 816 [2006]).The evidence of domestic violence perpetrated by defendant against a witness was alsoproperly admitted because it was inextricably interwoven with that witness's testimony(see generally People v Ely, 68 NY2d 520, 529 [1986]). Additionally, contrary todefendant's contention, the court weighed the probative value of the domestic violenceevidence against its prejudicial impact (see People v DiTucci, 81 AD3d 1249, 1250 [2011], lvdenied 17 NY3d 794 [2011]), and the prejudicial impact of that evidence wasminimized by the court's limiting instructions (see People v Carson, 4 AD3d 805, 806 [2004], lvdenied 2 NY3d 797 [2004]).
Defendant failed to preserve for our review his contention that hearsay testimonyfrom a witness regarding the victim's pregnancy violated his right of confrontation (see People v Rivera, 33 AD3d450, 450-451 [2006], lv denied 7 NY3d 928 [2006]) and, in any event, thatcontention lacks merit inasmuch as defendant opened the door to such testimony (see People v Reid, 19 NY3d382, 388 [2012]). Contrary to defendant's contention, his right to remain silent wasnot violated by the testimony of a police officer that defendant waived hisMiranda warnings and provided an oral statement, but refused to provide anaffidavit (see People v Hendricks, 90 NY2d 956, 957 [1997]; People v Beecham, 74 AD3d1216, 1217 [2010], lv denied 15 NY3d 918 [2010], reconsiderationdenied 16 NY3d 856 [2011]). Defendant's further contention that the testimony ofanother police officer also violated his right to remain silent is not preserved for ourreview (see People v Larsen, 145 AD2d 976, 977 [1988], lv denied 73NY2d 1017 [1989]), and we decline to exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
Defendant next contends that the court erred in refusing to admit in evidence a priorinconsistent statement of a prosecution witness. The contents of that affidavit wereessentially put before the jury during cross-examination of the witness, and the decisionwhether to admit [*3]the affidavit in evidence wastherefore within the court's discretion (see People v Piazza, 48 NY2d 151,164-165 [1979]). We perceive no abuse of discretion in the court's refusal to do so(see People v Lewis, 277 AD2d 1022, 1022-1023 [2000], lv denied 96NY2d 802 [2001]).
Defendant also contends that certain conduct by the prosecutor denied him a fairtrial. We agree with defendant that it was improper for the prosecutor to imply during thetestimony of a witness that defendant had an obligation to call another witness (seePeople v Grice, 100 AD2d 419, 422 [1984]), but we conclude that the court'scurative instruction was sufficient to alleviate any prejudice to defendant (see People v Smith, 88 AD3d487, 488 [2011]; People vPeterson, 71 AD3d 1419, 1420 [2010], lv denied 14 NY3d 891 [2010]).Additionally, even assuming, arguendo, that certain comments by the prosecutor onsummation impermissibly shifted the burden of proof (see People v Grant, 94 AD3d1139, 1141 [2012]), we conclude that the comments were not so pervasive oregregious as to deny defendant a fair trial (see People v Caldwell, 98 AD3d 1272, 1273 [2012]).Defendant's further contention that the prosecutor failed to correct allegedly falsetestimony by one of the expert witnesses is not preserved for our review (see People v Golson, 93 AD3d1218, 1219-1220 [2012], lv denied 19 NY3d 864 [2012]), and we decline toexercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the evidence is legally insufficient to establishthat he was the perpetrator (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The evidence established that defendant made admissions to several differentpeople that he killed his wife. We further conclude that, viewing the evidence in light ofthe elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), theverdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). Inasmuch as there was direct evidence of defendant's guilt consisting ofhis admissions to several witnesses that he killed his wife, we reject defendant's furthercontention that the court erred in failing to give a circumstantial evidence charge (see People v Casper, 42 AD3d887, 888 [2007], lv denied 9 NY3d 990 [2007]).
Defendant failed to preserve for our review his contention that the testimony of theexperts violated his right of confrontation (see People v Encarnacion, 87 AD3d 81, 89 [2011], lvdenied 17 NY3d 952 [2011]) and, in any event, that contention is without merit.Those experts relied on an autopsy report and DNA paternity report, respectively, but theactual reports were not admitted in evidence. "Out-of-court statements that are related by[an] expert solely for the purpose of explaining the assumptions on which that opinionrests are not offered for their truth and thus fall outside the scope of the ConfrontationClause" (Williams v Illinois, 567 US —, —, 132 S Ct 2221, 2228[2012]).
Defendant was not denied a fair trial based upon cumulative error (see People v Rumph, 93 AD3d1346, 1348 [2012], lv denied 19 NY3d 967 [2012]), and the court did noterr when it sentenced defendant. The court did not base its sentence on a crime of whichdefendant had been acquitted (cf. People v Wilkonson, 281 AD2d 373, 374[2001], lv denied 96 NY2d 926 [2001]), but rather sentenced him based on allthe relevant facts and circumstances surrounding the crime of which he was convicted(see People v La Veglia, 215 AD2d 836, 837 [1995]). We have examineddefendant's remaining contentions and conclude that they are without merit.Present—Centra, J.P., Peradotto, Lindley, Whalen and Martoche, JJ.