| People v Evans |
| 2015 NY Slip Op 02782 [127 AD3d 780] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eric Evans, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant, andappellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and RuthE. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered May 26, 2010, convicting him of murder in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
After excluding the periods of delay caused by the resolution of the defendant'smotions and continuances requested by or consented to by the defendant (see Peoplev Torres, 60 NY2d 119 [1983]; People v Kopciowski, 68 NY2d 615,616-617 [1986]; People v Lambert, 92 AD2d 550 [1983], affd 61 NY2d978 [1984]; People vMorris, 94 AD3d 912, 913 [2012]; People v Williams, 32 AD3d 403, 405 [2006]), as well asperiods excludable as being upon "good cause shown" (Foran v Metz, 463 FSupp 1088, 1097 [SD NY 1979], affd 603 F2d 212 [2d Cir 1979]), the SupremeCourt correctly concluded that fewer than 180 days were chargeable to the People underthe Interstate Agreement on Detainers (hereinafter the IAD) (CPL 580.20, art III [a]).Thus, the Supreme Court properly denied the defendant's motion to dismiss theindictment based on the IAD.
The defendant's first trial had ended in a mistrial. The Supreme Court properlyadmitted the testimony of the defendant's sister from his first trial into evidence duringthe People's case at this retrial. A witness's testimony in a previous proceeding may beadmitted as part of the People's direct case where the People "demonstrate by clear andconvincing evidence that the defendant, by violence, threats or chicanery, caused [the]witness's unavailability" (People v Cotto, 92 NY2d 68, 75-76 [1998]; seePeople v Geraci, 85 NY2d 359, 365-366 [1995]; People v Leggett, 107 AD3d 741 [2013]; People vMajor, 251 AD2d 999 [1998]). "Because of 'the inherently surreptitious nature ofwitness tampering' circumstantial evidence may be used to 'establish, in whole or in part,that a witness's unavailability was procured by the defendant' " (People vCotto, 92 NY2d at 76, quoting People v Geraci, 85 NY2d at 369; see People v Dubarry, 107AD3d 822 [2013]). Here, after a Sirois hearing (see People v Sirois,92 AD2d 618 [1983]; Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415[1983]), the Supreme Court properly determined that the defendant used his closerelationship with his sister to persuade or pressure her into not testifying against him atthe retrial (see People vLeggett, 107 AD3d 741 [2013]; People v Jernigan, 41 AD3d 331, 332 [2007]; People vMajor, 251 AD2d 999 [1998]).
[*2] Afteran additional Sirois hearing, the Supreme Court properly admitted the testimonyof an additional witness from the first trial into evidence during the People's case at theretrial. CPL 670.10 (1) authorizes the use of prior trial testimony where a witness isunavailable due to "illness or incapacity," which, in this case, was established byevidence of the witness's severe mental illness and suicidal tendencies (see People vLombardi, 39 AD2d 700, 701 [1972], affd 33 NY2d 658 [1973]; cf.People v Slaughter, 163 AD2d 342 [1990]; People v Del Mastro, 72 Misc 2d809 [Nassau County Ct 1973]).
There is no merit to the defendant's contention, raised in his pro se supplementalbrief, that the Supreme Court improperly curtailed cross-examination of certainprosecution witnesses (see People v Standberry, 244 AD2d 584, 584-585 [1997];People v Jones, 239 AD2d 602, 603 [1997]).
The defendant's contentions regarding prosecutorial misconduct duringcross-examination of him are unpreserved for appellate review (see CPL 470.05[2]; People v Heide, 84 NY2d 943, 944 [1994]; People v Medina, 53NY2d 951, 953 [1981]; Peoplev Salnave, 41 AD3d 872 [2007]), and, in any event, are without merit. Thedefendant's contentions that various remarks made by the prosecutor on summation wereimproper and deprived him of a fair trial are largely unpreserved for appellate review(see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]; People vDordal, 55 NY2d 954, 956 [1982]; People v Wright, 90 AD3d 679 [2011]). In any event, anyimproper remarks constituted harmless error, and did not deprive the defendant of a fairtrial (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Persaud, 98 AD3d527, 529 [2012]; see also People v Galloway, 54 NY2d 396, 399 [1981]; People v Rogers, 106 AD3d1029 [2013]).
A jury note, marked as court exhibit 7, was revealed to the attorneys for the parties,read into the record, and addressed by the Supreme Court. Further, defense counselstated on the record that he had no objection to the court's handling of the note. Thedefendant's contention that the principles enunciated in People v Silva (24 NY3d294 [2014]) and People v O'Rama (78 NY2d 270 [1991]) were violated iswithout merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,83 [1982]). Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.