| People v Vernon |
| 2016 NY Slip Op 00787 [136 AD3d 1276] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAndre Vernon, Appellant. (Appeal No. 1.) |
Michael L. D'Amico, Buffalo, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered January 23, 2009. The judgment convicted defendant, upon a jury verdict,of murder in the second degree, attempted murder in the second degree, assault in thefirst degree and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of, inter alia, murder in the second degree (Penal Law§ 125.25 [1]) and attempted murder in the second degree(§§ 110.00, 125.25 [1]), in connection with the shooting of two menwho were brothers. The surviving victim testified that he and his brother were arguingwith defendant on the street. During the argument, defendant's uncle pulled up to thecurb near defendant in his vehicle, a large dark SUV, and joined the argument. Thevictim ran when defendant pulled a gun from his sweatshirt pocket, and the victim heardtwo gunshots, the second of which struck him in the back. An eyewitness, who was in hisvehicle parked on the street, told the police that he heard two shots and saw the SUVback up briefly and "possibly shoot again" before driving off. The eyewitness wasdeceased at the time of the trial, and his statement was introduced through the testimonyof a police detective following defendant's objection that the People had violated theirBrady obligation by failing to turn over the statement to defendant before trial.According to defendant, the statement of the eyewitness is exculpatory because itimplicates his uncle as the shooter. Even assuming, arguendo, that the statement of theeyewitness constitutes Brady material, we reject defendant's contention that thefailure to turn over the statement prior to trial denied him due process and thus thatreversal is required. "Defendant received the remedy he requested after the Peopledisclosed the [contents of the statement] and he had a reasonable opportunity to use it aspart of his defense" (People vSanchez, 21 NY3d 216, 225 [2013]; see People v Goodell, 164 AD2d321, 327 [1990], affd 79 NY2d 869 [1992]; People v Daniels, 115 AD3d 1364, 1365 [2014], lvdenied 23 NY3d 1019 [2014]).
We reject defendant's further contention that Supreme Court erred in determining,following a Sirois hearing, that defendant knowingly consented to threats thatwere made against a witness in the event she appeared to testify for the prosecution, andthus erred in permitting the prosecution to use the grand jury testimony of that witness intheir direct case. The witness, who lived in Georgia, testified before the grand jury thatdefendant contacted her after the shooting and admitted that he shot two people, killingone of them, and requested that she permit him to stay with her. The witness did notappear at trial pursuant to the subpoena served on her. The prosecutor testified at theSirois hearing that he provided defense counsel with the name of the witness onthe first day of trial. He also testified regarding his conversations with the witnessfollowing the first day of trial, wherein she related the contents of threatening voicemailmessages that she had received. One message was from defendant's sister, another wasfrom an unknown male, and additional threatening messages were relayed to her by hermother, who is married to another uncle of defendant's. Telephone records admitted inevidence showed 17 calls from numbers with a Buffalo area code made to the witness'sphone on the first day of trial, one of which was identified as belonging to defendant'ssister. The People also presented the recorded telephone conversations betweendefendant and an unidentified female on the evening of the first day of trial, wherein thefemale stated, inter alia, that "her husband is getting back from Iraq"; "all that you askedhas already been done"; and "we are trying to go contact the girl." Defense counseltestified at the Sirois hearing that the witness called him and said that hertestimony before the grand jury was not true and, when he asked whether she had beenthreatened, she responded that her mother had relayed a message that she should nottestify and that people were calling her on her phone. Defense counsel testified that thewitness explained to him that she would not testify because her husband was scheduledto return from a military deployment and she wanted to be home when he arrived. Weconclude that the court properly determined that the People proved by the requisite clearand convincing evidence that the witness had been ready to testify; that on the first day oftrial a series of telephone calls were made to the witness and there were messages thatthreatened the witness to such an extent that she changed her mind and refused to testify;and that the totality of the evidence and logical inferences support the conclusion thatdefendant was responsible for, or acquiesced in, the threats that made the witnessunavailable for trial (see People v Geraci, 85 NY2d 359, 370 [1995]; People v Miller, 61 AD3d1429, 1429 [2009], lv denied 12 NY3d 927 [2009]; see generally People v Smart,23 NY3d 213, 220-221 [2014]).
Viewing the evidence in light of the elements of the crimes as charged to the jury, wereject defendant's contention that the verdict is against the weight of the evidence (see People v Danielson, 9NY3d 342, 349 [2007]; see generally People v Bleakley, 69 NY2d 490, 495[1987]). Even assuming, arguendo, that a different verdict would not have beenunreasonable, we conclude that the jury did not fail to give the evidence the weight itshould be accorded (see Bleakley, 69 NY2d at 495).
We reject defendant's contention in appeal No. 2 that the court erred in denying hismotion to vacate the judgment pursuant to CPL 440.10 (1) (g) on the ground that theaffidavit of the witness recanting her grand jury testimony does not constitute newlydiscovered evidence inasmuch as defense counsel testified at the Sirois hearingthat the witness said that her grand jury testimony was not true, and the prosecutortestified that the witness explained to him why she said that to defense counsel. Thus, theaffidavit does not constitute evidence discovered since the entry of the judgment (see People v Backus, 129AD3d 1621, 1625 [2015]). We note that " '[t]here is no form of proof sounreliable as recanting testimony' " (People v Lane, 100 AD3d 1540, 1541 [2012], quotingPeople v Shilitano, 218 NY 161, 170 [1916], rearg denied 218 NY 702[1916]). In any event, the affidavit does not constitute newly discovered evidence withinthe meaning of CPL 440.10 (1) (g), "because the issues raised in the affidavit wouldmerely impeach or contradict the [prior] testimony of the . . . witness, andthe new evidence therefore is not 'of such character as to create a probability that. . . the verdict would have been more favorable to the defendant' had theevidence been introduced" (People v Howington, 122 AD3d 1289, 1290 [2014], lvdenied 25 NY3d 1165 [2015]).
Defendant also sought to have the judgment vacated pursuant to CPL 440.10 (1) (c),based upon his allegation that the prosecutor knowingly presented evidence he knew tobe false in the form of the grand jury testimony of the witness who refused to testify. Thecourt did not explicitly rule on that part of defendant's motion, and we cannot deem thecourt's silence on that part of the motion to be a denial thereof (see People v Jones, 114 AD3d1272, 1272 [2014]; seegenerally People v Concepcion, 17 NY3d 192, 194-196 [2011]). We thereforehold the case in appeal No. 2, reserve decision and remit the matter to Supreme Court fora determination of that part of the motion. Present—Smith, J.P., Peradotto,Lindley, DeJoseph and Scudder, JJ.