| People v Haywood |
| 2015 NY Slip Op 00555 [124 AD3d 798] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tyrone Haywood, Appellant. |
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), forappellant, and appellant pro se.
Janet DiFiore, District Attorney, White Plains, N.Y. (John M. Collins and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Adler, J.), rendered April 30, 2009, convicting him of rape in the first degree (twocounts), criminal sexual act in the first degree, attempted criminal sexual act in the firstdegree, assault in the second degree (two counts), assault in the third degree (twocounts), robbery in the third degree (two counts), and unlawful imprisonment in thesecond degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentencesimposed on the convictions of criminal sexual act in the first degree, attempted criminalsexual act in the first degree, assault in the second degree (two counts), assault in thethird degree (two counts), robbery in the third degree (two counts), and unlawfulimprisonment in the second degree (two counts); as so modified, the judgment isaffirmed, and the matter is remitted to the Supreme Court, Westchester County, forresentencing on those convictions.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that his conviction of unlawful imprisonment in thesecond degree merged with his convictions of rape in the first degree, criminal sexual actin the first degree, attempted criminal sexual act in the first degree, and robbery in thethird degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Hanley, 20 NY3d601, 606 [2013]; People vRambali, 27 AD3d 582, 583 [2006]) and, in any event, without merit (seePeople v Gonzalez, 80 NY2d 146, 153 [1992]; People v Crosdale, 103 AD3d 749, 751[2013]).
[*2] The defendant's contention thatthe trial court erred in responding to a jury note by rereading the charge that had alreadybeen given to the jury is also unpreserved for appellate review (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Bogan, 78 AD3d 855 [2010]) and, in any event,without merit (see People vSanti, 3 NY3d 234, 248 [2004]; People v Bogan, 78 AD3d at 856; People v Brown, 71 AD3d1043 [2010]).
The trial court properly precluded the defendant from cross-examining one of thecomplaining witnesses regarding a notarized statement which she had denied signing,and for which the notary could not be located. "[T]here must be a proper foundation laidfor the introduction of prior inconsistent statements of a witness. In order to preventsurprise and give the witness the first opportunity to explain any apparent inconsistencybetween his [or her] testimony at trial and his [or her] previous statements, he [or she]must first be questioned as to the time, place and substance of the prior statement"(People v Duncan, 46 NY2d 74, 80-81 [1978]; see People v Weldon, 111NY 569, 575-576 [1888]; Richardson, Evidence § 502 [Prince 10th ed]). "Ifthe witness does not admit that he [or she] signed the statement[ ], the genuineness of thesignature can be proved by any one or in any legal way. Such proof enables theimpeaching party to properly offer the paper in evidence as a part of his [or her] case or,with the permission of the court, at any other stage of the trial" (Larkin v NassauElec. R.R. Co., 205 NY 267, 270 [1912]). Where, as here, the party seeking to admitthe writing into evidence has not proven the genuineness of the signature, "the writing'cannot be read to the jury or, provided it can be produced, used as a basis forcross-examination as to its contents until it is in evidence' " (Jerome Prince,Richardson on Evidence § 6-411 [b] at 407 [Farrell 11th ed 1995], quotingLarkin v Nassau Elec. R.R. Co., 205 NY at 270; see also People v Lyons, 112AD3d 849, 850 [2013]; People v Benson, 233 AD2d 749 [1996]).Accordingly, we decline to disturb the trial court's determination in this regard.
Further, the defendant was not entitled to the production of handwriting exemplars inconnection with his attempt to authenticate the notarized statement (see People v Denham, 97AD3d 691, 692 [2012]). The defendant's contention, advanced on appeal, that thetrial court's ruling on this issue constituted a violation of the Confrontation Clause, wasnot advanced before the trial court and is, thus, unpreserved for appellate review(see CPL 470.05 [2]; People v Liner, 9 NY3d 856, 856-857 [2007]; People vKello, 96 NY2d 740, 743-744 [2001]; People v Bonds, 118 AD3d 717, 718 [2014]; People v Brummel, 103 AD3d805, 806-807 [2013]; People v Mack, 300 AD2d 254 [2002]). Moreover, inlight of the substantial question concerning the reliability of the statement, we concludethat there was no due process violation in its exclusion (see People v Dackowski,50 NY2d 962, 964 [1980]; People v Panaro, 213 AD2d 1036 [1995]; cf. People v Thompson, 111AD3d 56, 67 [2013]; People v Bradley, 99 AD3d 934, 936-937 [2012]).
"[T]he granting of an adjournment for any purpose is a matter resting within thesound discretion of the trial court" (People v Diggins, 11 NY3d 518, 524 [2008]; Matter ofAnthony M., 63 NY2d 270, 283 [1984]). A request by the prosecution for a briefadjournment for the purpose of obtaining a material witness should be granted where,among other factors, the prosecution demonstrates some diligence and good faith, as itdid here (see People v Singleton, 41 NY2d 402,406 [1977]; People v Ramlall, 99 AD3d815 [2012]; People vDeCampoamor, 91 AD3d 669, 671 [2012]; People v Nunez, 199 AD2d285, 286 [1993]). In addition, the defendant failed to show any prejudice (see People v McRae, 62 AD3d723 [2009]).
The Supreme Court providently exercised its discretion in denying the defendant'smotion pursuant to CPL 200.20 (3) to sever the charges in the indictment involving aseparate incident. The charges in the indictment were properly joined pursuant to CPL200.20 (2) (c), since the crimes share common elements, and the criminal conduct at theheart of each crime was comparable (see People v Pierce, 14 NY3d 564, 574 [2010]; People v Beltran, 110 AD3d153, 162-163 [2013]). Where offenses are joinable under CPL 200.20 (2) (c), adefendant can seek a discretionary severance, but "severance will be granted only if he[or she] can persuade the court that the severance should be granted 'in the interest ofjustice and for good cause shown' " (People v Lane, 56 NY2d 1, 7[1982], quoting CPL 200.20 [3]). Here, the defendant failed to demonstrate that therewas substantially more proof of one incident, as compared to the other, and that therewas a substantial likelihood that the jury would be unable to consider separately theproof as it related to each incident (see People v Martinez, 69 AD3d 958, 959 [2010]). Further,there is nothing in the record indicating that the jury was "unable to separately considerthe discrete charges" (id. [citation omitted]; see People v Montalvo, [*3]34 AD3d 600, 601 [2006]). The fact that sex crimes wereinvolved in both incidents did not provide a sufficient basis to require a severance(see People v Cox, 298 AD2d 461 [2002]; People v Jarvis, 215 AD2d588 [1995]; People v Prezioso, 199 AD2d 343 [1993]; People v Hall, 169AD2d 778 [1991]; cf. People v Shapiro, 50 NY2d 747 [1980]). Thus, it is notnecessary to consider the People's alternate argument that the counts were properlyjoinable pursuant to CPL 200.20 (2) (b).
The defendant failed to sustain his "high burden of demonstrating that he wasdeprived of a fair trial by less than meaningful representation" (People v Hobot,84 NY2d 1021, 1022 [1995]).
The sentencing minutes indicate that the court imposed indeterminate terms ofimprisonment of 1
The defendant's remaining contentions in his pro se supplemental brief areunpreserved for appellate review and, in any event, without merit. Dillon, J.P.,Hinds-Radix, Maltese and Barros, JJ., concur.