| People v Johnson |
| 2014 NY Slip Op 03918 [117 AD3d 637] |
| May 29, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jason Johnson, Appellant. |
Steven Banks, The Legal Aid Society, New York (Katheryne M. Martone ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at suppressionhearing; Charles H. Solomon, J., at protective order and motion to controvert searchwarrant; Edward J. McLaughlin, J., at jury trial and sentencing), rendered September 16,2008, as amended September 24, 2008, convicting defendant, after a jury trial, ofkidnapping in the first degree and two counts each of murder in the second degree,robbery in the first degree and conspiracy in the fourth degree, and sentencing him to anaggregate term of 36
The hearing court properly denied defendant's motion to suppress statements.Defendant did not preserve his present challenges to the court's ruling (see e.g. People v Medina, 93AD3d 459 [1st Dept 2012], lv denied 19 NY3d 999 [2012]), and we declineto review them in the interest of justice. As an alternative holding, we reject them on themerits. The hearing evidence established that defendant knowingly, intelligently andvoluntarily waived his Miranda rights, notwithstanding his refusal to put anythingin writing. The record fails to support defendant's claims that the detective'spost-Miranda conduct improperly encouraged defendant to believe that hisstatements were given in confidence and would not be used against him, that defendantoperated under that belief, or that any statement was the product of trickery (see Matter of Jimmy D., 15NY3d 417, 424 [2010]). We have considered and rejected defendant's relatedargument concerning the trial court's charge on the issue of the voluntariness ofdefendant's statements.
The court properly denied defendant's application pursuant to Batson vKentucky (476 US 79 [1986]). The record supports the court's finding that thenondiscriminatory reasons provided by the prosecutor for the four challenges at issuewere not pretextual. This finding, based primarily on the court's assessment of thechallenging attorney's credibility, is entitled to great deference (see Snyder vLouisiana, 552 US 472, 477 [2008]; People v Hernandez, 75 NY2d 350[1990], affd 500 US 352 [1991]). The prosecutor was not required to show thatthese nondiscriminatory reasons were related to the facts of the case (see People v Hecker, 15 NY3d625, 656, 663-665 [2010]), and we do not find any disparate treatment by theprosecutor of similarly situated panelists.
Defendant's challenge to the legal sufficiency of the evidence supporting the robbery[*2]convictions is unpreserved and we decline to reviewit in the interest of justice. As an alternative holding, we reject it on the merits. We alsofind that the verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The evidence supports the conclusion that when defendant pointed aloaded handgun at the victim, he did so for the purpose, among other things, ofcompelling him to give up his automobile (see Penal Law § 160.00[2]), and that defendant did so with the intent to permanently deprive the victim of it,specifically by disposing of it under circumstances rendering it unlikely that he wouldrecover it (see Penal Law § 155.00 [3]; People v Kirnon, 39AD2d 666, 667 [1972], affd 31 NY2d 877 [1972]).
Defendant did not preserve his Confrontation Clause claim regarding a detective'stestimony about information she received from an anonymous caller, which included asingle reference to defendant by his nickname, and we decline to review in the interest ofjustice. Defendant's vague allusions to "confrontation issues," made in different contextsfrom his present claim, were insufficiently specific to meet the preservation requirement(see e.g. People v Rios, 102AD3d 473, 474 [2013], lv denied 20 NY3d 1103 [2013]; People v Paulin, 78 AD3d557, 558 [2010], lv denied 16 NY3d 862 [2011]; compare People v Hardy, 4NY3d 192, 197 n 3 [2005]). As an alternate holding, we find that the disputedtestimony was properly admitted, not for its truth (see Tennessee v Street, 471 US409 [1985]), but for the legitimate nonhearsay purposes of completing the narrative andexplaining police actions (see People v Tosca, 98 NY2d 660 [2002]; People vRivera, 96 NY2d 749 [2001]; see also United States v Reyes, 18 F3d 65,70-71 [1994]). Moreover, this evidence was directly relevant to issues raised bydefendant at trial. In any event, any error in receiving this evidence was harmless (seePeople v Crimmins, 36 NY2d 230 [1975]).
Defendant did not preserve his claim that he was constitutionally entitled tointroduce, on redirect examination, a prior statement of a defense witness, and to pursuea particular line of questioning (see People v Lane, 7 NY3d 888, 889 [2006]), and wedecline to review it in the interest of justice. As an alternative holding, we find that theproposed evidence did not satisfy the requirements for impeaching one's own witness byproof of a prior contradictory statement (see CPL 60.35 [1]), and that defendantwas not prejudiced by the court's ruling because he was still permitted to pursue a closelyrelated line of questioning, and was able to convey the desired information to the jury. Inany event, any error in this regard was likewise harmless.
The court lawfully imposed consecutive sentences for the robbery, kidnapping andconspiracy convictions because defendant committed these crimes through separate anddistinct acts (see People vMcKnight, 16 NY3d 43, 48-49 [2010]).
We reject defendant's contention that the sentencing court denied him due process byconsidering the allegations of a sworn criminal felony complaint without sufficientlyascertaining the complaint's reliability. Defendant was afforded sufficient opportunity tocontest the facts upon which the court relied but never expressly contended that theallegations in the complaint were materially untrue (see People v Hansen, 99NY2d 339, 346 [2003]). Moreover, defense counsel's statements and defendant'sunsolicited outbursts during the sentencing proceeding provided the court with asufficient basis for concluding that the complaint's allegations were based on reliable andaccurate information.
We perceive no basis for reducing defendant's aggregate sentence.
We decline to revisit this Court's prior order (2013 NY Slip Op 95690[U] [decidedApr. 9, 2013]), made after [*3]its in camera examinationof the sealed materials, which denied defendant's motion to unseal the search warrantaffidavit and documents or transcripts related to the warrant application.Concur—Tom, J.P., Moskowitz, DeGrasse, Richter and Kapnick, JJ.