| People v Davis |
| 2015 NY Slip Op 07677 [132 AD3d 891] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shareiff R. Davis, Appellant. |
Bruce A. Petito, Poughkeepsie, N.Y., for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Forman, J.), rendered December 11, 2012, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of ourfactual review power (see CPL 470.15 [5]), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
The court's Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]) was proper. In making its ruling, the court engaged in the requisite balancing ofprobative value against prejudicial effect, and reached an appropriate compromise rulingthat precluded inquiry into the underlying facts of the defendant's prior convictions (see People v Biear, 119 AD3d599, 600 [2014]; People v McManus, 300 AD2d 321 [2002]). The defendantfailed to meet his burden of demonstrating that the prejudicial effect of the evidence ofhis prior convictions so outweighed the probative worth of that evidence that exclusionwas warranted (see People vRosado, 115 AD3d 884, 885 [2014]; People v Cosme, 99 AD3d 940, 941 [2012]; People v Harris, 74 AD3d984 [2010]).
The County Court did not improvidently exercise its discretion in closing thecourtroom for the Sirois hearing (see People v Sirois, 92 AD2d 618[1983]). The People advanced an overriding interest in the safety of the individualstestifying, and the closure was no broader than necessary to protect that interest (see People v Garay, 25 NY3d62, 69-70 [2015]; People vEchevarria, 21 NY3d 1, 11 [2013]). While the record does not mentionalternatives, it is otherwise sufficient to establish the need to close the courtroom for thehearing. Therefore, it can be implied that the County Court, in ordering closure,determined that no lesser alternative would protect the articulated interest (see Peoplev Garay, 25 NY3d at 70; People v Echevarria, 21 NY3d at 17). Moreover,the evidence presented at the hearing, and the inferences that logically flow therefrom,were sufficient to support the court's determination, under the clear and convincingevidence standard, that the defendant's [*2]misconductcaused the witness's refusal to testify at trial, and thus the People were properly allowedto read the witness's grand jury testimony to the jury as part of their direct case (see People v Wilson, 115AD3d 891 [2014]; People v Oge, 287 AD2d 469 [2001]).
The County Court did not improvidently exercise its discretion in discharging a jurorjust before deliberations began, because the juror had to travel out of state for the funeralof a family member and was therefore unavailable for continued service within themeaning of CPL 270.35 (1) (seePeople v Faulkner, 55 AD3d 924, 925 [2008]; People v Velasquez, 171AD2d 825, 826 [1991]).
The defendant contends that the prosecutor committed misconduct by making certainremarks about the victim in his opening statement, and by questioning witnesses aboutthe victim's background. However, these contentions are unpreserved for appellatereview, because the defendant did not object to these remarks or questions (see People v Wallace, 123AD3d 1151, 1152 [2014]; People v Mereness, 43 AD3d 473, 474 [2007]; People vArroyo, 309 AD2d 870, 871 [2003]). In any event, the defendant's contention thatthis and other conduct by the prosecutor constituted misconduct is without merit.
Finally, the County Court did not improvidently exercise its discretion in allowingthe People to recall a detective as a rebuttal witness, as the rebuttal evidence was closelylinked to the alleged motive, or lack thereof, for the subject murder, which was notcollateral (see People v Roache, 308 AD2d 388 [2003]). Rivera, J.P., Balkin,Leventhal and Dickerson, JJ., concur.