| People v Leggett |
| 2013 NY Slip Op 04028 [107 AD3d 741] |
| June 5, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jonathan Leggett, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and HowardB. Goodman of counsel), for respondent.
Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County(Dowling, J.), rendered March 24, 2009, convicting him of manslaughter in the seconddegree, upon a jury verdict, and imposing sentence, and (2) a resentence of the samecourt imposed April 8, 2009.
Ordered that the appeal from so much of the judgment as imposed the sentence isdismissed, as that portion of the judgment was superseded by the resentence; and it isfurther,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that the resentence is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The Supreme Court providently exercised its discretion in making itsSandoval ruling (see People v Sandoval, 34 NY2d 371, 374 [1974]). Thecourt struck an appropriate balance between the probative value of the defendant's priorcrimes in connection with the question of his credibility and the possible prejudice to thedefendant (see People vReid, 97 AD3d 1037, 1038 [2012]).
Contrary to the defendant's contention, the Supreme Court properly admitted a swornaudiotaped statement from Timothy Dixon as evidence during the People's case. Awitness's out-of-[*2]court statements may be admitted aspart of the People's direct case where the People "demonstrate by clear and convincingevidence that the defendant, by violence, threats or chicanery, caused [the] witness'sunavailability" (People v Cotto, 92 NY2d 68, 75-76 [1998]; see People vJohnson, 93 NY2d 254, 256-257 [1999]; People v Geraci, 85 NY2d 359[1995]; People v Major, 251 AD2d 999 [1998]). "Recognizing the surreptitiousnature of witness tampering and that a defendant engaging in such conduct will rarely doso openly, resorting instead to subterfuge, the court can rely on and the prosecution canuse circumstantial evidence in making the requisite determination" (People v Encarnacion, 87AD3d 81, 87 [2011]; see People v Cotto, 92 NY2d at 76-77).
Here, at the Sirois hearing (see People v Sirois, 92 AD2d 618[1983]), the People established that Dixon, who had given an audiotaped statement to anassistant district attorney on June 1, 2005, and had testified for the People before thegrand jury in October 2006, disappeared during the course of the trial and wasunavailable to testify. The evidence established that the defendant, in a recordedtelephone conversation from jail on January 19, 2009, which was less than two weeksbefore the trial, discussed with his mother whether she had spoken with certainwitnesses, and named some of the witnesses against him, including "Stuffy," also knownas Timothy Dixon. The defendant, while incarcerated, had telephone contact with Dixonon February 1, 2009, which was the eve of trial, as the trial commenced on February 2,2009. Thereafter, Dixon left the assistant district attorney a voicemail message onFebruary 4, 2009, the day before he was scheduled to appear in court, in which heexpressed a reluctance to testify, in part, because he had been "getting phone calls." Inaddition to the foregoing evidence, the People demonstrated that the defendant had alsomade a phone call from jail to Jada Adorno, the mother of the People's witness NicoleCampbell, asking her to discourage her daughter from testifying (see People vSmith, 283 AD2d 189, 190 [2001] ["In addition to extensive evidence concerningthe missing witness himself, the court properly considered evidence of defendant'sunsuccessful attempts to tamper with other witnesses since this evidence established acommon scheme or plan to tamper with as many witnesses as possible"]). Under thecircumstances of this case, the People established by clear and convincing evidence thatthe defendant wrongfully made use of his relationship with Dixon to pressure him not totestify (see People v Encarnacion, 87 AD3d at 87-89; People v Jernigan, 41 AD3d331, 332-333 [2007]; People v Major, 251 AD2d at 999-1000).
Finally, the Supreme Court providently exercised its discretion in denying thedefendant's request for a mistrial based on a witness's references to the defendant's arrestfor an unrelated crime (see People v Young, 48 NY2d 995 [1980]; People vCapers, 298 AD2d 184 [2002]). Skelos, J.P., Angiolillo, Roman and Cohen, JJ.,concur.