| People v Williams |
| 2016 NY Slip Op 03765 [139 AD3d 885] |
| May 11, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jaerue Williams, Appellant. |
Christine Moccia, Chappaqua, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Virginia A.Marciano, Laurie Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered April 1, 2014, convicting him of manslaughter in the first degreeand criminal possession of a weapon in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The charges against the defendant arise from a drug transaction in February 2012 inPort Chester during which the victim was shot and killed. After a jury trial, the defendantwas convicted of manslaughter in the first degree (Penal Law § 125.20 [1])and criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]).
Contrary to the defendant's contention, the County Court did not err in denying thatbranch of his omnibus motion which was to suppress identification testimony. TheWade hearing (see United States v Wade, 388 US 218 [1967]) testimonyshowed that a witness viewed a photo shown to him by private individuals prior to apolice-arranged photo array viewing in which the witness identified a different photo ofthe defendant. Where the conduct of private citizens is alleged to have resulted in asuggestive identification procedure, no "per se" constitutional rule of exclusion applies(People v Marte, 12 NY3d583, 589 [2009]). There is no evidence here that the witness's earlier identificationof a photograph of the defendant resulted in unconstitutional taint at the police-arrangedphotographic identification procedure. Likewise, there was no basis upon which to findthat the identification should have been excluded on other grounds (see id.).
Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620 [1983]), we find that the People presented legally sufficientevidence as to the defendant's identity as the shooter and as to the element of intent tocause serious physical injury or death (see Penal Law § 125.20 [1];People v Stanley, 124 AD3d919, 920 [2015]; People vHerb, 110 AD3d 829, 830 [2013]; People v Moore, 89 AD3d 769, 769 [2011]; People vPena, 242 AD2d 546, 546 [1997]; People v Harvey, 138 AD2d 742, 742-743[1988]). Moreover, upon our independent review of the evidence pursuant to CPL [*2]470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The County Court's Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]) reflected an appropriate balance between the probative value ofevidence of the defendant's prior crimes on the issue of credibility and the possibleprejudice to the defendant stemming from the admission of such evidence (see People v Huger, 136 AD3d943, 944 [2016]).
Contrary to the defendant's contention, the County Court did not err in admittingtestimony as to alleged threats made to a trial witness. "Evidence that a third partythreatened a witness with respect to testifying at a criminal trial is admissible where thereis at least circumstantial evidence linking the defendant to the threat" (People v Myrick, 31 AD3d668, 669 [2006]; see Peoplev Jones, 21 NY3d 449, 456 [2013]). Here, the County Court did not err infinding that there was sufficient evidence linking the defendant to the implied threat tothe witness, and it did not improvidently exercise its discretion in permitting the Peopleto introduce properly limited evidence as to the threat (see People v Green, 92 AD3d953, 954 [2012]).
The defendant failed to preserve for appellate review his contention that the Peopledid not establish an adequate chain of custody supporting the admission into evidence ofcertain clothing and possessions of the victim (see CPL 470.05 [2]; People v Ortiz, 80 AD3d628, 629-630 [2011]). In any event, the defendant's contention as to the chain ofcustody is without merit (seePeople v Mustafa, 114 AD3d 966, 967 [2014]).
"Absent a compelling reason, the order of trial prescribed by CPL 260.30 should befollowed" (People v Fama, 212 AD2d 542, 543 [1995]). The determination ofwhether to reopen a case for further testimony rests within the sound discretion of thetrial court (see People v Ventura, 35 NY2d 654, 655 [1974]; People vMcCloud, 305 AD2d 428, 429 [2003]; People v Fama, 212 AD2d at 543).Here, the defendant sought to reopen the trial in order to present evidence that, accordingto the defendant, related to the possible culpability of a third party. Any conclusion,however, that the third party was culpable was so tenuous as to be entirely speculative.Accordingly, the County Court would not have improvidently exercised its discretion byexcluding that evidence had it been offered during the defendant's case (see People vPowell, 27 NY3d 523, 530-531 [2016]; cf. People vDiPippo, 82 AD3d 786 [2011]), and it did not improvidently exercise itsdiscretion in denying the defendant's application to reopen the trial to present thatevidence (see People v McCloud, 305 AD2d at 429; People v Fama, 212AD2d at 543).
The defendant did not request an instruction on corroboration of accomplicetestimony (see e.g. CJI2d[NY] Accomplice as a Question of Fact). Therefore, hiscontention that the County Court erred in failing to instruct the jury on that issue is notpreserved for appellate review (see CPL 470.05 [2]; People v Montero, 100 AD3d1555, 1556 [2012]; Peoplev Wesley, 19 AD3d 937, 937 [2005]). In any event, an accomplice corroborationinstruction was not required here (see CPL 60.22 [1]; People v Caban, 5 NY3d143, 154 [2005]; People vAnderson, 118 AD3d 1138, 1143-1144 [2014]).
Finally, the record, viewed in totality, shows that defense counsel providedmeaningful representation (see People v Baldi, 54 NY2d 137, 139 [1981]; seealso Strickland v Washington, 466 US 668, 688, 695 [1984]). Rivera, J.P., Dillon,Balkin and Sgroi, JJ., concur.