| People v DeJesus |
| 2013 NY Slip Op 02355 [105 AD3d 476] |
| April 9, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joshue DeJesus, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered September16, 2009, convicting defendant, after a jury trial, of murder in the second degree, andsentencing him to a term of 20 years to life, unanimously affirmed.
Evidence concerning the course of the police investigation of this homicide did notviolate defendant's right of confrontation. Initially, we note that the prosecutor did notactually introduce any testimonial statements by nontestifying declarants. Instead,defendant complains that the jury could have misused certain police testimony asevidence that nontestifying persons incriminated him.
A detective's brief, limited testimony that defendant was already a suspect at the timethe People's main witness was interviewed did not violate the Confrontation Clause. Thisevidence was not offered for its truth (see Tennessee v Street, 471 US 409[1985]), but for the legitimate nonhearsay purposes of completing the narrative,explaining police actions, providing the context of the interview, correcting amisimpression created by defendant on cross-examination and preventing juryspeculation (see People v Tosca, 98 NY2d 660 [2002]; People v Rivera,96 NY2d 749 [2001]; see also United States v Reyes, 18 F3d 65, 70-71 [1994]).The probative value of this evidence for its nonhearsay purposes outweighed anyprejudicial effect.
Defendant also claims that police testimony about obtaining information from otherpersons in the course of the investigation similarly violated his right of confrontation.However, due to its lack of specificity, this evidence presented little or no danger that thejury would draw an inference that these persons provided incriminating information. Inany event, like the evidence of the point at which defendant became a suspect, thisadditional evidence was admissible for legitimate nonhearsay purposes, and its admissiondid not violate the Confrontation Clause.
Defendant did not preserve his claim that the court should have instructed the juryregarding the limited use of the evidence that was not received for its truth, and wedecline to review it in the interest of justice. As an alternative holding, we find that theabsence of an instruction was harmless under all the circumstances of the case, includingthe limited prejudicial effect of the challenged evidence. Defendant's claim that trialcounsel rendered ineffective [*2]assistance by notrequesting such and instruction is improperly raised for the first time in a reply brief(see e.g. People v Napolitano, 282 AD2d 49, 53 [2001], lv denied 96NY2d 866 [2001]). In any event, regardless of whether counsel should have requestedthe instruction, defendant has not established that the absence of the instruction resultedin prejudice under the state or federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668[1984]).
Defendant's mistrial motion was insufficient to preserve his claim that the prosecutorunfairly insinuated that defendant intimidated witnesses or potential witnesses, and wedecline to review it in the interest of justice. As an alternative holding, we find that thecomments and evidence challenged by defendant did not deprive him of a fair trial. Theevidence challenged by defendant was relevant to issues raised at trial. Furthermore,defendant's recorded conversations permitted a reasonable inference that he was involvedin witness intimidation.
Defendant's pro se claim about prosecutorial vouching in summation is withoutmerit. Defendant did not preserve any of his other pro se claims, or any of the otherchallenges to the prosecutor's summation raised in defendant's main brief, or hischallenge to police testimony that allegedly expressed an opinion on the main witness'sreliability, and we decline to review these claims in the interest of justice. As analternative holding, we reject them on the merits. Concur—Mazzarelli, J.P.,Acosta, Renwick, Richter and Gische, JJ.