| People v Mejia |
| 2015 NY Slip Op 02299 [126 AD3d 1364] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJose Mejia, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered March 19, 2012. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts), robbery in the first degree, criminal possessionof a weapon in the second degree and criminal possession of stolen property in the fifthdegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, two counts of murder in the second degree (Penal Law§ 125.25 [1], [3]) and one count of robbery in the first degree(§ 160.15 [2]). We reversed defendant's prior judgment of conviction on theground that his statements to the police should have been suppressed (People v Mejia, 64 AD3d1144, 1145-1146 [2009], lv denied 13 NY3d 861 [2009]). On this appealfollowing the retrial, defendant contends that Supreme Court erred in admitting inevidence the codefendant's testimony from the first trial. We reject defendant's contentionthat the admission of the prior testimony violated his right of confrontation or CPL670.10 (1) (see People vKnowles, 79 AD3d 16, 24 [2010], lv denied 16 NY3d 896 [2011]). Thecodefendant refused to testify based on his belief that his plea agreement with the Peopledid not require him to testify twice, and his refusal to testify constituted incapacityinasmuch as the court threatened to hold the codefendant in contempt, and indeed didhold him in contempt, for his refusal to testify (see Knowles, 79 AD3d at 24-25;People v Barber, 2 AD3d1290, 1291 [2003], lv denied 2 NY3d 761 [2004]). Contrary to defendant'sfurther contention, the court did not abuse its discretion in not allowing the codefendantto be called to the stand and refuse to testify in front of the jury (see generally Peoplev Thomas, 51 NY2d 466, 472 [1980]; People v Dixon, 149 AD2d 613, 613[1989], lv denied 76 NY2d 733 [1990]), and in not charging the jury that thewitness refused to testify (seegenerally People v Tatro, 53 AD3d 781, 786-787 [2008], lv denied 11NY3d 835 [2008]; People v Zanghi, 256 AD2d 1120, 1121 [1998], lvdenied 93 NY2d 881 [1999]). We have considered defendant's remaining contentionregarding the admission of the codefendant's prior testimony in evidence and concludethat it is without merit.
As we held in the prior appeal, the court "properly admitted the trial testimony of awitness concerning an admission by silence by defendant" (Mejia, 64 AD3d at1145). Defendant's contention that a proper foundation was not laid for that testimony isnot preserved for our review (see CPL 470.05 [2]), and is without merit in anyevent inasmuch as "[t]he record supports the conclusion that defendant heard anotherperson's statement accusing him of the crime" (People v Frias, 250 AD2d 495,496 [1998], lv denied 92 NY2d 982 [1998]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's further contention that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant contends that he was denied a fair trial based on a comment made by theprosecutor during summation. That comment, however, was a fair response to defensecounsel's [*2]summation (see People v Ross, 118 AD3d1413, 1417 [2014], lv denied 24 NY3d 964 [2014]; People v Lyon, 77 AD3d1338, 1339 [2010], lv denied 15 NY3d 954 [2010]). In any event, that singleremark was "isolated and not so . . . egregious as to warrant a reversal"(People v Walker, 259 AD2d 1026, 1027 [1999], lv denied 93 NY2d1029 [1999]). The sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Peradotto, Lindley and Whalen, JJ.