| People v Paulk |
| 2013 NY Slip Op 04145 [107 AD3d 1413] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMartin S. Paulk, Appellant. (Appeal No. 1.) |
—[*1] Martin S. Paulk, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered June 19, 2009. The judgment convicted defendant, upon a jury verdict, ofkidnapping in the first degree and intimidating a victim or witness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from two judgments convicting him, following aconsolidated jury trial, of various crimes arising from his criminal sale and criminalpossession of a controlled substance and his subsequent kidnapping of a witness to thedrug crimes. In December 2006, a confidential informant (hereafter, victim) provided theNew York State Police with names of known drug dealers, including defendant, whomthe victim had known for several years. The police arranged for two controlled buys inJanuary 2007 and, based on those buys, executed a search warrant of defendant's homelater that month. Defendant was arrested and arraigned on a felony complaint, datedJanuary 25, 2007, charging him with criminal possession of a controlled substance in thethird degree based on the discovery of cocaine during that search. Approximately a yearlater, defendant was indicted on 10 counts of criminal possession and sale of a controlledsubstance, and a trial was scheduled for May 12, 2008.
On the scheduled trial date, the People indicated that they were not ready to proceedbecause the victim could not be located. The victim was arrested pursuant to a materialwitness warrant approximately one month later. He alleged that defendant, along withtwo other men, had kidnapped him at gunpoint on May 7, 2008, held him captive forapproximately five days, and thereafter drove him to Atlanta, where he was ordered, onthreat of physical violence against his family, to stay in an apartment with defendant'sbrother. The jury ultimately convicted defendant, in appeal No. 1, of kidnapping in thefirst degree (Penal Law § 135.25 [2] [b]) and intimidating a victim or witness inthe third degree (§ 215.15 [1]) and, in appeal No. 2, of two counts each of criminalsale of a controlled substance in the third degree (§ 220.39 [1]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]).[*2]
On appeal, defendant contends in his main andpro se supplemental briefs that his conviction of kidnapping in the first degree is againstthe weight of the evidence because the victim's testimony was untrustworthy andincredible of belief. While acquittal would not have been unreasonable given theevidence presented at trial, particularly the testimony of the victim (see People v Danielson, 9NY3d 342, 348 [2007]), it is possible that the jury accepted some parts of thevictim's testimony and rejected other parts (see generally People v Negron, 91NY2d 788, 792 [1998]). If the jury credited the victim's initial abduction testimony, thatevidence would have fulfilled each element of the kidnapping charge and, viewing theevidence in light of the elements of that crime as charged to the jury (seeDanielson, 9 NY3d at 349), we conclude that the verdict finding defendant guilty ofkidnapping in the first degree is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant next contends in his main brief that Supreme Court should have reopenedthe proof after jury deliberations had begun, when defendant made an offer of proof thatthe victim had fabricated the kidnapping story. We conclude that the court properlydenied defendant's request to reopen the proof to present the exculpatory testimonyinasmuch as the proffered testimony related to credibility (see People v Olsen, 34NY2d 349, 355-356 [1974]; see also People v Whipple, 97 NY2d 1, 6-7 [2001]).To the extent that defendant raises a constitutional issue concerning the reopening of theproof, defendant failed to preserve that issue for our review by not raising it before thetrial court (see People vLane, 7 NY3d 888, 889 [2006]). We decline to exercise our power to reviewthat constitutional issue as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]).
We reject defendant's contention in his main and pro se supplemental briefs that hewas deprived of a fair trial based on prosecutorial misconduct. We note that defendantfailed to object to many of the allegedly improper comments made by the prosecutor andthus failed to preserve his contention for our review to that extent (see CPL470.05 [2]). With respect to those allegations of prosecutorial misconduct that arepreserved for our review, we conclude that they are either without merit or that they werenot so egregious as to deny defendant due process of law (see generally People vJacobson, 60 AD3d 1326, 1328 [2009], lv denied 12 NY3d 916 [2009]).
Defendant's contention in his main brief that the court improperly interfered with theexamination of witnesses so as to deprive him of a fair trial is not preserved for ourreview because defendant did not object at trial to the alleged improprieties (seeCPL 470.05 [2]). We decline to exercise our power to review that contention as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary todefendant's further contention in his main brief, the court did not err in denying hismotion pursuant to CPL 330.30 to set aside the verdict based on newly discoveredevidence (see People vBowers, 4 AD3d 558 [2004], lv denied 2 NY3d 796 [2004]). Defendantfailed to meet his burden of demonstrating by a preponderance of the evidence that thetestimony of three inmate witnesses was not cumulative to evidence already adduced attrial (see CPL 330.30 [3]; see generally People v Wainwright, 285 AD2d358, 360 [2001]).
We have considered defendant's remaining contentions, including the remainingcontention in his pro se supplemental brief, and conclude that they are without merit.Present—Scudder, P.J., Peradotto, Lindley, Valentino and Martoche, JJ.