| People v Smith |
| 2017 NY Slip Op 03657 [150 AD3d 1664] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DeMarioSmith, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedNovember 22, 2013. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). Defendant's convictionstemmed from the shooting of a 19-year-old victim at point-blank range with a shotgun. Contraryto defendant's contention, viewing the elements of the crime in light of the charge to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Even assuming, arguendo,that a different verdict would not have been unreasonable because defendant was identified as theshooter only by his two accomplices, we nevertheless conclude that the jury did not "fail[ ] togive the evidence the weight it should be accorded" (id.). The credibility concerns thatdefendant raises on appeal with respect to the testimony of the accomplices were thoroughlyexplored on cross-examination. Furthermore, the testimony of the accomplices was sufficientlycorroborated by other evidence, particularly the testimony of an eyewitness who described theshooter as of "medium build," which fit the description of only defendant, and the testimony ofanother witness to whom defendant admitted several weeks after the shooting that "he had toteach [the victim] a lesson because [the victim] wasn't playing by the rules."
Because the evidence is legally sufficient to support the conviction, defendant is precludedfrom challenging on appeal the instructions the prosecutor gave to the grand jury (see People v Gibson, 137 AD3d1657, 1658 [2016], lv denied 27 NY3d 1151 [2016]; People v Cotton, 120 AD3d 1564,1565-1566 [2014], lv denied 27 NY3d 963 [2016]). In any event, we conclude that thefailure of the prosecutor to instruct the grand jury that the testimony of the accomplices requiredcorroboration did not impair the integrity of the grand jury (see CPL 210.35 [5]),inasmuch as the testimony of the accomplices was corroborated by defendant's admission ofculpability to a nonparticipant (see People v White, 147 AD2d 967, 967 [1989]; seegenerally People v Burgin, 40 NY2d 953, 954 [1976]). Thus, the error did not "prejudice theultimate decision reached by the [g]rand [j]ury" (People v Elioff, 110 AD3d 1477, 1477 [2013], lv denied 22NY3d 1040 [2013] [internal quotation marks omitted]).
We reject defendant's contention that the prosecutor acted in bad faith by calling a witnesswhom he knew would not testify in accordance with the sworn statement the witness gave to thepolice within 24 hours of the murder (see People v Jablonski, 176 AD2d 1242, 1242[1991]). Prior to the commencement of the trial, County Court questioned the witness withrespect to the contents of his statement to the police, i.e., that he saw the victim talking todefendant, whom he identified by his street name, moments before he heard a gunshot, and thathe was "100% sure" that it was defendant whom he saw talking to the victim. The statement alsoreflected that the witness knew the female accomplice, whom he also identified by name. Thewitness told the court that the police detectives who took the statement were "mixed up" becausehe was not an eyewitness to the murder; however, he agreed with the court that he was obligatedto tell the truth when called to testify. Thus, "there is no indication that the prosecutor called [thewitness] in 'bad faith' simply to use [his] presence to introduce prior statements that wouldotherwise be inadmissible" (id.;cf. People v Mitchell, 57 AD3d 1308, 1310 [2008]). During his trial testimony, thewitness denied that he knew either defendant or the female accomplice and denied that he hadever heard their names or seen them before. The court therefore properly permitted the prosecutorto impeach the witness insofar as the witness had provided a sworn statement to the police thathe knew the names of defendant and the female accomplice. Such impeachment was properbecause the witness gave "testimony upon a material issue of the case [tending] to disprove theposition of" the People that it was the defendant, and not the male accomplice, who shot thevictim (CPL 60.35 [1]; see People vBerry, 27 NY3d 10, 17 [2016]; People v Saez, 69 NY2d 802, 804 [1987]).Inasmuch as the only eyewitness evidence identifying defendant as the shooter was provided byhis accomplices, the witness's testimony "affirmatively damage[d] the [People's] case"(Saez, 69 NY2d at 804). Furthermore, the court properly instructed the jury that it couldconsider the evidence regarding the contents of the statement, which was not admitted inevidence (see CPL 60.35 [2]; cf. Berry, 27 NY3d at 18), only for the purpose ofimpeaching the credibility of the witness, and not for its truthfulness (see Berry, 27 NY3dat 18).
We reject defendant's further contention that the court erred in denying as untimely hisrequest for a missing witness charge, which was made the day after proof was closed (see People v Muscarella, 132 AD3d1288, 1290 [2015], lv denied 26 NY3d 1147 [2016]). In any event, defendant failedto meet his burden that he was entitled to the missing witness charge inasmuch as the testimonyof the witness at issue would have been cumulative of other testimony that the male accomplicehad sold marihuana to the witness a few hours prior to the victim's murder (see id.).
Defendant contends that he was denied a fair trial by prosecutorial misconduct onsummation, but we note that he failed to object to any of the comments he now raises on appeal,and thus his contention is not preserved for our review (see People v Cooper, 134 AD3d 1583, 1586 [2015]). In any event,defendant's contention is without merit. Although we agree with defendant that certain remarksmade by the prosecutor were improper, particularly that the jury "owed a duty" to the victim andthe people of the community (see Peoplev Garner, 145 AD3d 1573, 1574 [2016]), we nevertheless conclude that the improperremarks were not so egregious that defendant was denied a fair trial (see id.). Weconclude that the remaining comments at issue were either a fair comment on the evidence or afair response to defense counsel's summation, and thus those comments did not exceed thebounds of legitimate advocacy (seePeople v Miller, 104 AD3d 1223, 1224 [2013], lv denied 21 NY3d 1017[2013]). "Because the alleged improper remarks did not deny defendant a fair trial, he was notdenied effective assistance of counsel based upon defense counsel's failure to object to thoseremarks" (Cooper, 134 AD3d at 1586). We have reviewed defendant's remainingcontentions and conclude that they are without merit. Present—Peradotto, J.P., Carni,Lindley, Troutman and Scudder, JJ.