| People v Evans |
| 2014 NY Slip Op 02607 [116 AD3d 879] |
| April 16, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Doran Evans, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andKeith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Gerges, J.), rendered May 10, 2007, convicting him of murder in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
A witness's out-of-court statements may be admitted as part of the People's directcase where the People "demonstrate by clear and convincing evidence that the defendant,by violence, threats or chicanery, caused [the] witness's unavailability" (People vCotto, 92 NY2d 68, 75-76 [1998]; see People v Leggett, 107 AD3d 741, 741-742 [2013])."Recognizing the surreptitious nature of witness tampering and that a defendantengaging in such conduct will rarely do so openly, resorting instead to subterfuge, thecourt can rely on and the prosecution can use circumstantial evidence in making therequisite determination" (Peoplev Encarnacion, 87 AD3d 81, 87 [2011]; see People v Leggett, 107AD3d at 742). Contrary to the defendant's contention, the Supreme Court correctlyadmitted the grand jury testimony of an unavailable witness. The People established, byclear and convincing evidence, that the witness had been rendered unavailable due tothreats made at the defendant's initiative or acquiescence (see People v Geraci, 85NY2d 359, 370 [1995]; Peoplev Tatum, 35 AD3d 511 [2006]).
Further, the Supreme Court providently exercised its discretion in denying thedefendant's motion to reopen the suppression hearing, since the defendant failed to showthat the alleged new facts proffered by him would have affected the court's ultimatedetermination of the issue of probable cause (see CPL 710.40 [4]; People v Jackson, 97 AD3d693, 694 [2012]).
The defendant's challenges to certain remarks made by the prosecutor duringsummation are unpreserved for appellate review, as the defendant " 'failed to object tothe challenged remarks, registered one-word general objections, or, when an objectionwas sustained, failed to request further instructions or [timely] move for a mistrial' " (People v Mullings, 83 AD3d871, 872 [2011], quoting People v Gill, 54 AD3d 965, 966 [2008]; see CPL470.05 [2]). In any event, the challenged remarks either constituted fair comment on theevidence (see People vHerb, 110 AD3d 829, 831 [2013]; People v Ashwal, 39 NY2d 105[1976]), were responsive to arguments and theories presented in the defense's [*2]summation (see People v Herb, 110 AD3d at 831;People v Galloway, 54 NY2d 396 [1981]), were permissible rhetorical comment(see People v Ashwal, 39 NY2d at 109-110), or constituted harmless error(see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to the defendant's contention, the Supreme Court did not deprive him of hisSixth Amendment right to represent himself. The defendant's initial request to proceedpro se was not unequivocal but was made in the context of expressing dissatisfactionwith assigned counsel, and thus, "did not 'reflect an affirmative desire forself-representation' " (People v Jackson, 97 AD3d at 694, quoting Matter of Kathleen K. [StevenK.], 17 NY3d 380, 387 [2011]; People v Scivolette, 40 AD3d 887, 887-888 [2007]).
The defendant was not deprived of the effective assistance of counsel (see Peoplev Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
The defendant's remaining contentions are without merit. Rivera, J.P., Lott, Millerand Hinds-Radix, JJ., concur.