| People v Rivera |
| 2015 NY Slip Op 00569 [124 AD3d 1070] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Albert J. Rivera, Also Known as A.J. Rivera,Appellant. |
Eugene P. Grimmick, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Rensselaer County(Jacon, J.), rendered June 17, 2011, upon a verdict convicting defendant of the crime ofmanslaughter in the second degree.
Defendant was indicted and charged with murder in the second degree, criminalpossession of a weapon in the second degree and two counts of criminal possession of aweapon in the third degree in connection with the October 2005 shooting death of thevictim in the City of Troy, Rensselaer County. The shooting occurred in a dead-end alleythat ran behind the residence where the victim then was living, and the victim was foundlying on the ground near a white sport utility vehicle that was parked in the alley.Following a jury trial, defendant was convicted as charged and sentenced to a lengthyperiod of incarceration.[FN1] Upon appeal, this Court reverseddefendant's murder conviction based upon County Court's failure to submit to the jurythe lesser included offense of manslaughter in the second degree, remitted the matter fora new trial as to that count [*2]and otherwise affirmed(70 AD3d 1177 [2010]). Following a second trial, defendant was convicted ofmanslaughter in the second degree and thereafter was sentenced as a second felonyoffender to a prison term of 7
Initially, we reject defendant's assertion that County Court abused its discretion infailing to reopen the Huntley hearing. Although "an order following asuppression motion made pursuant to CPL article 710 ordinarily will be [binding in asubsequent trial]" (People v Evans, 94 NY2d 499, 504-505 [2000]), "[a] trialcourt may reopen a pretrial hearing if it 'is satisfied, upon a showing by the defendant,that additional pertinent facts have been discovered by the defendant which he [or she]could not have discovered with reasonable diligence before the determination' of his [orher] pretrial application" (People v Fuentes, 53 NY2d 892, 894 [1981], quotingCPL 710.40 [4]; see People vMcDonald, 82 AD3d 1125, 1126 [2011], lv denied 19 NY3d 964[2012]). Inasmuch as defendant's motion here was premised entirely upon events thatallegedly occurred at the time that he was initially questioned by law enforcement, i.e.,events to which defendant could have testified or otherwise brought to light at the initialHuntley hearing, we do not find that County Court abused its discretion indenying defendant's motion to reopen (cf. People v Thompson, 118 AD3d 822, 823 [2014], lvgranted 24 NY3d 1089 [2014]).
Nor are we persuaded that the Assistant District Attorney abused his discretion inrefusing to grant immunity to Charles Smith, whom the police discovered at the sceneminutes after the shooting. At the start of the trial, and outside of the presence of the jury,Smith appeared and invoked his right against self-incrimination, whereupon CountyCourt inquired as to the People's position with respect to immunity. The AssistantDistrict Attorney indicated that the People were unwilling to confer immunity uponSmith at that time "[b]ecause he could be charged as an accomplice, an accomplice tomurder"—a representation that both defense counsel and Smith's attorneystrenuously disputed.
Pursuant to CPL 50.30, a prosecutor is vested with the discretion to confer "fulltransactional immunity" upon a witness appearing on behalf of either the People or thedefendant (People v Adams, 53 NY2d 241, 247 [1981]). Although the exercise ofsuch discretion "is reviewable for abuse if, for instance, the prosecutor builds his [or her]case with immunized witnesses but denies the defendant a similar opportunity"(id. at 247; see People v Owens, 63 NY2d 824, 825-826 [1984]; People v Swank, 109 AD3d1089, 1090 [2013], lv denied 23 NY3d 968 [2014]), we discern no abuse ofthat discretion here. Notably, and contrary to defendant's assertion, "[t]he absence ofcurrent charges against the witness with respect to the subject of the proposed testimonydoes not establish bad faith on the part of the prosecutor" (People v Owens, 63NY2d at 826).
Defendant's claim that the People failed to exercise diligent efforts to secure thetestimony of an out-of-state witness is equally unavailing. Pursuant to CPL 670.10 (1), atrial court may "allow into evidence the testimony of a witness given at a prior trial if thewitness is outside the state and cannot with due diligence be brought before the court"(People v Diaz, 97 NY2d 109, 112 [2001]; see People v Arroyo, 54NY2d 567, 569-570 [1982], cert denied 456 US 979 [1982]; People v Grice, 84 AD3d1419, 1420 [2011], lv denied 17 NY3d 806 [2011]; People v Hilts, 46 AD3d947, 948-949 [2007], affd 13 NY3d 895 [2009]). Here, the witness inquestion contacted the Rensselaer County District Attorney's office and advised anAssistant District Attorney that she had moved to Washington and was not interested inreturning to New York to testify at defendant's subsequent trial. The witness declined toprovide a current address or phone number and, when briefly placed on hold, ended thephone call. Although the witness's mother also declined to provide any informationregarding her daughter's whereabouts, the [*3]Peoplewere able to locate an address for the witness in Washington and successfully applied toCounty Court for a material witness order. When a member of the local sheriff'sdepartment in Washington attempted service, however, the deputy found the premises tobe vacant and was advised by the landlord that the witness had left in the middle of thenight approximately six weeks earlier. When the People again attempted to locate thewitness through her mother, who resided in Clinton County, they discovered that themother's phone had been disconnected. Subsequent efforts were made by both local andWashington state law enforcement officials and investigators to locate the witnessthrough various databases, including the Department of Motor Vehicles and social mediasites, all to no avail. County Court ultimately determined that the People exerciseddiligent efforts to locate the witness in question, and we discern no basis upon which toset aside that finding (seePeople v Hilts, 46 AD3d 947, 949 [2007]; compare People v McDuffie, 46 AD3d 1385, 1385-1386[2007], lv denied 10 NY3d 867 [2008]). Notably, and as found by County Court,nothing in the record suggests "that the prosecutor's failure to produce [the subjectwitness] was . . . due to indifference or a strategic preference for presentingher testimony in the more sheltered form of [a trial transcript] rather than in theconfrontational setting of a personal appearance on the stand" (People v Arroyo,54 NY2d at 571).
As for defendant's challenges to County Court's various Molineux rulings,"evidence of uncharged crimes or prior bad acts may be admitted where they fall withinthe recognized Molineux exceptions—motive, intent, absence of mistake,common plan or scheme and identity—or where such proof is inextricablyinterwoven with the charged crimes, provide[s] necessary background or complete[s] awitness's narrative" (People vJohnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013][internal quotation marks and citations omitted]; accord People v Brown, 114 AD3d 1017, 1019 [2014])and, further, "the trial court . . . determines that the probative value of suchevidence outweighs its prejudicial effect" (People v Brown, 114 AD3d at 1019).Here, defendant takes issue with the fact that two of the witnesses who testified as to thecircumstances surrounding either his acquisition or display of a gun on the night inquestion also made references to certain drug-related activity. Upon reviewing thetranscript, we agree with County Court that such testimony provided necessarycontext/background information or otherwise completed the relevant witness's narrative.Upon balancing the probative value of such testimony vis-à-vis its prejudicialeffect, we conclude that this testimony was properly admitted into evidence. We reach asimilar conclusion regarding testimony offered relative to a structure fire, which the Troyfire chief labeled as arson, that occurred one week before and near the scene of theshooting. Such testimony plainly went to defendant's possible motive for committing thecrime, i.e., that the victim could implicate him in setting the fire (see n 2,infra) and, on balance, was properly admitted.
Turning to defendant's claim that his conviction was against the weight of theevidence, upon viewing the evidence in a neutral light and granting appropriatedeference to the jury's credibility determinations (see People v Bleakley, 69NY2d 490, 495 [1987]), we cannot say that the jury failed to accord the evidence itsproper weight. Various witnesses placed defendant near the scene of the shootingimmediately before it occurred, and multiple witnesses described defendant as carrying agun earlier that evening. Certain witnesses also observed an individual walking awayfrom the scene of the shooting wearing clothing substantially similar to that described byother witnesses as the clothing worn by defendant earlier that day. Additionally, at leasttwo witnesses testified that defendant—either expressly or tacitly—admittedthat he had participated in the shooting,[FN2] and multiple witnesses testified as tostatements made by defendant [*4]that reasonably couldbe interpreted as evidencing his involvement therein.[FN3] Admittedly, certain contradictions andinconsistencies existed in the proffered testimony, and some of the People's witnesseseither had prior criminal convictions, were allowed to plead to reduced charges inexchange for their testimony or had made previous statements that contradicted theirtestimony at trial. All of these issues, however, "were fully explored duringcross-examination and, in the final analysis, posed credibility questions for the jury toresolve" (People v Malak,117 AD3d 1170, 1174 [2014], lv denied 24 NY3d 1086 [2014]; see People vDesmond, 118 AD3d 1131, 1133 [2014], lv denied 24 NY3d 1002[2014]; People v Forbes,111 AD3d 1154, 1157-1158 [2013]). Upon viewing such evidence in its totality, wedo not find defendant's conviction to be against the weight of the evidence.
Finally, defendant contends that he was deprived of a fair trial by virtue of theprosecutor's summation. We do not agree. Initially, we note that virtually all of the nowchallenged comments were unaccompanied by a contemporaneous objection at trial,thereby rendering defendant's arguments in this regard unpreserved for our review (see People v Ormsby, 119AD3d 1159, 1161 [2014], lv denied 24 NY3d 963 [2014]; People v VanVorst, 118 AD3d1035, 1037 [2014]). In any event, the challenged statements—in largemeasure—either constituted fair comment on the evidence or were a fair responseto comments made by defense counsel in her closing and, viewing the summation as awhole, we do not find "that the prosecutor engaged in a flagrant and pervasive pattern ofprosecutorial misconduct so as to deprive [defendant] of a fair trial" (People v Green, 119 AD3d23, 30 [2014], lv denied 23 NY3d 1062 [2014] [internal quotation marks andcitations omitted]). Defendant's remaining contentions, including his assertion that thePeople improperly altered their theory of liability and that the sentence imposed is harshand excessive, have been examined and found to be lacking in merit.
Lahtinen, J.P., McCarthy and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Derrick Rosa also wascharged in the same indictment with various weapons-related crimes for having obtainedthe gun used in the shooting. Rosa ultimately pleaded guilty to attempted criminal sale ofa firearm and was sentenced to time served and five years of probation.
Footnote 2:One witness testifiedthat, when he asked defendant "if he did it," defendant "look[ed] at [him], winked andjust shushed [him]" because other people were in the room. Another witness testifiedthat, shortly after the shooting occurred, he ran into defendant at a local hospital, atwhich time defendant indicated that "he was being investigated for a murder." Defendantthen mentioned the victim's name and said, "we did it" or "I did it." This witness furthertestified that he recalled defendant indicating that the shooting had "something to doabout a fire that was set and [the victim] was going to sign a statement on him."
Footnote 3:For example, onewitness testified that defendant appeared at his house approximately 30 minutes after theshooting and asked "if she was dead or alive." This same witness, who could placedefendant in the alley near the time of the shooting, also testified that defendant advisedhim "not to say anything that [he] knew to the police" and indicated—in anapparent reference to the shooting—that "it wasn't supposed to happen like that."Another witness testified that while she was talking with defendant in the alley that night,defendant noticed a familiar white vehicle and remarked that "he should go down thereand shoot them."