| People v Richberg |
| 2014 NY Slip Op 08863 [123 AD3d 946] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Johnny L. Richberg, Appellant. |
Evelyn K. Isaac, Hastings-on-Hudson, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Hubert, J.), rendered June 14, 2012, convicting him of tampering with physicalevidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his constitutional right to confront acertain nontestifying witness, based upon a police officer's trial testimony as to hisconversation with that witness. At the trial, Sergeant Howard Tribble testified that whilehe was at White Plains Hospital investigating a stabbing, he was approached by a namedindividual who stated that "he had something to tell me." Sergeant Tribble relayed theinformation to his supervisor, Sergeant McCann, who was at the crime scene. SergeantMcCann, in turn, relayed the information to Police Officer Marcus McLean, whotestified that he then canvassed the area of the crime scene and found a serrated kitchenknife covered with blood.
Contrary to the People's contention, the Confrontation Clause (see US Const,6th Amend) issue is preserved for appellate review. While the issue was not "plainlypresent[ed]" to the Supreme Court (People v Feingold, 7 NY3d 288, 290 [2006]), the court'sruling on the defendant's objection demonstrates that the court specifically consideredand resolved this issue (see id. at 290; People v Prado, 4 NY3d 725,726 [2004]; People v Berry, 49 AD3d888, 889 [2008]).
The defendant's constitutional right to be confronted with the witnesses against himprohibits the "admission of testimonial statements of a witness who did not appear at trialunless he [or she] was unavailable to testify, and the defendant ha[s] had a prioropportunity for cross-examination" (Crawford v Washington, 541 US 36, 53-54[2004]; see People v Pealer,20 NY3d 447, 453 [2013]). Here, however, Sergeant Tribble's testimony and thesubsequent testimony relating to the discovery of the weapon did not violate theConfrontation Clause, since there was no direct implication that the nontestifying witnesstold the police that the defendant possessed the knife, disposed of it, or tried to conceal it(see People v Wilson, 101AD3d 764, 765-766 [2012]; cf. People v [*2]Nesbitt, 77AD3d 854 [2010]; People vFairweather, 69 AD3d 876, 877 [2010]; People v Berry, 49 AD3d 888 [2008]). Dillon, J.P.,Dickerson, Cohen and Duffy, JJ., concur.