| People v Negron |
| 2014 NY Slip Op 03752 [117 AD3d 598] |
| May 22, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Negron, Appellant. The People of the State of New York,Respondent, v Jorge Jiminez, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Rahul Sharmaof counsel), for Carlos Negron, appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern ofcounsel), for Jorge Jiminez, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel),for respondent.
Judgments, Supreme Court, New York County (Renee A. White, J.), renderedNovember 9, 2010, convicting both defendants, after a jury trial, of robbery in the seconddegree (four counts) and burglary in the second degree, and sentencing defendantNegron, as a second violent felony offender, to concurrent terms of 15 years, andsentencing defendant Jiminez, as a persistent violent felony offender, to concurrent termsof 20 years to life, unanimously affirmed.
The court properly exercised its discretion in precluding defendants from introducinga portion of the prosecutor's paralegal's notes of an interview with a nontestifying victim.These notes were inadmissible under any hearsay exception, even if defendants hadcalled the paralegal as a witness. Since defendants did not assert any constitutional rightto introduce the precluded evidence, they did not preserve their constitutional claim (see People v Lane, 7 NY3d888, 889 [2006]; see also Smith v Duncan, 411 F3d 340, 348-349 [2d Cir2005]), and we decline to review it in the interest of justice. As an alternative holding,we also reject it on the merits. Defendants did not make an adequate showing that thisevidence was reliable, or that it was critically exculpatory (see Chambers vMississippi, 410 US 284 [1973]; People v Robinson, 89 NY2d 648, 654[1997]; People v Burns, 18AD3d 397 [2005], affd 6 NY3d 793 [2006]). There was nothing directlyexculpatory about the excluded comment, which, at most, tended to contradict a minoraspect of the People's case. Similarly, any error in the exclusion of this evidence washarmless (see People v Crimmins, 36 NY2d 230 [1975]).
The court properly declined defendants' request to charge petit larceny as a lesserincluded offense of a particular robbery count. There was no reasonable view of theevidence, viewed most favorably to defendants, that they took property, but did sowithout using force. Nothing in either the prosecution or defense cases supported such atheory (see People v Negron, 91 NY2d 788 [1998]; People v Ruiz, 216AD2d 63 [1995], affd 87 NY2d 1027 [1996]). Since defendants clearly limitedtheir request to only one robbery count, the claim is unpreserved with respect to the otherrobbery counts, and we decline to review it in the interest of justice. As an alternativeholding, we reject it for the same reasons.
The loss of a relatively small portion of the stenographic record does not requirereversal of defendants' convictions (see People v Harrison, 85 NY2d 794 [1995]).The court conducted a reconstruction hearing at which various participants in the trialpresented their recollections, to the extent possible, of the brief portions of the trial forwhich minutes are not available. When viewed in light of the presumption of regularity(id. at 796), the facts adduced at the reconstruction hearing regarding the missingpages support an inference that the missing minutes would not have revealed anysignificant appellate issues.
Defendant Jiminez did not preserve his claim that the admission at trial of theconditional examinations of two witnesses, without proof of the witnesses' unavailability,violated his right of confrontation and the requirements of CPL 670.10 (1), and wedecline to review it in the interest of justice. It was Jiminez's counsel who initiallyproposed the taking of the conditional examinations of the two California residents, andhe made no objection when they were received at trial. Thus, Jiminez effectivelystipulated to the use of the examinations, thereby relieving the People of their burden ofshowing unavailability.
We perceive no basis for reducing the sentences.
Defendant Jiminez's pro se ineffective assistance of counsel claims are unreviewableon direct appeal because they involve matters not reflected in, or fully explained by, therecord (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Love,57 NY2d 998 [1982]). Accordingly, since Jiminez has not made a CPL 440.10 motion,the merits of the ineffectiveness claims may not be addressed on appeal. We haveconsidered and rejected Jiminez's remaining pro se claims. Concur—Renwick,J.P., Richter, Manzanet-Daniels, Feinman and Gische, JJ.