| People v Bisnauth |
| 2017 NY Slip Op 02807 [149 AD3d 860] |
| April 12, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rudolph Bisnauth, Appellant. |
Joseph Ferrante, Hauppauge, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Miller of counsel), forrespondent.
Appeals by the defendant (1) from a judgment of the County Court, Suffolk County (Doyle,J.), rendered March 15, 2011, convicting him of murder in the second degree, upon a jury verdict,and imposing sentence, and (2), by permission, from an order of the Supreme Court, SuffolkCounty (Cohen, J.), dated April 23, 2015, which, after a hearing, denied his motion pursuant toCPL 440.10 to vacate the judgment rendered March 15, 2011.
Ordered that the judgment and the order are affirmed.
A grand jury indicted the defendant and Michael McKenzie for acting in concert to commitmurder in the second degree (two counts: intentional and depraved indifference; Penal Law§ 125.25 [1], [2]) in connection with the shooting death of Jeremiah Armstrongoutside of a residence in Wyandanch on the evening of June 1, 2009. McKenzie subsequentlypleaded guilty to manslaughter in the first degree in satisfaction of the indictment insofar asagainst him (see People vMcKenzie, 98 AD3d 749 [2012]). A jury found the defendant guilty of depravedindifference murder. Thereafter, the defendant moved pursuant to CPL 440.10 to vacate thejudgment on the ground that the prosecution committed a Brady violation (Brady vMaryland, 373 US 83 [1963]) by failing to disclose, prior to trial, that a key witness for theprosecution had been a police informant. After a hearing, the Supreme Court denied themotion.
The defendant contends that the jury verdict was against the weight of the evidence. Infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant ascribes error to the prosecutor's introduction into evidence of prior statementsto impeach two prosecution witnesses, the failure of the trial court to give limiting instructions atthe time the impeachment material was introduced pursuant to CPL 60.35, and the [*2]prosecutor's reference to the prior statements during summation (see People v Solomon, 16 AD3d701, 702 [2005]). These contentions are, for the most part, unpreserved for appellate review(see CPL 470.05 [2]). In any event, to the extent these contentions have merit, we findany error harmless, as the evidence of the defendant's guilt was overwhelming and there was nosignificant probability that the error contributed to the defendant's conviction (see People vSaez, 69 NY2d 802, 804 [1987]; People v Crimmins, 36 NY2d 230 [1975]). Contraryto the defendant's alternative contention, he was not deprived of the effective assistance ofcounsel by his attorney's failure to preserve some of these claims during trial (see People v Ennis, 11 NY3d 403,415 [2008]; People v Stultz, 2NY3d 277, 287 [2004]; People vHoward, 120 AD3d 1259, 1260 [2014]).
The trial court properly denied the defendant's request for a missing witness charge, as thedefendant failed to meet his burden of establishing that the witness in question, the codefendant,would normally be expected to give noncumulative testimony favorable to the People (seegenerally People v Savinon, 100 NY2d 192, 196 [2003]; People v Gonzalez, 68NY2d 424, 427 [1986]; Buttice v Dyer, 1 AD3d 552, 552-553 [2003]). Indeed, thetestimony of a codefendant who has pleaded guilty is "presumptively suspect," and a prosecutorwould not normally be expected to call such a witness at trial (People v Rios, 184 AD2d244, 245 [1992]; see CPL 60.22;People v Heidt, 95 AD3d 1234, 1235 [2012]; People v Cyrus, 18 AD3d 1020, 1022 [2005]; People vArnold, 298 AD2d 895, 895 [2002]).
The Supreme Court properly denied, after a hearing, the defendant's motion pursuant to CPL440.10 to vacate the judgment on the ground that the prosecution committed a Bradyviolation (see Brady v Maryland, 373 US 83 [1963]) by failing to disclose that awitness had been a police informant. There was no reasonable possibility that such nondisclosureaffected the outcome of the trial (seePeople v Fuentes, 12 NY3d 259, 263 [2009]; People v Benloss, 117 AD3d 1071 [2014]; People v Graves, 62 AD3d 900,901 [2009]; People v Mauro, 236 AD2d 560 [1997]). Balkin, J.P., Austin, Sgroi andLaSalle, JJ., concur.