| People v Alisuarez |
| 2020 NY Slip Op 04959 [186 AD3d 1391] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jairam C. Alisuarez, Appellant. |
Randall D. Unger, Bayside, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,Sharon Y. Brodt, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (MichaelAloise, J.), rendered November 27, 2017, convicting him of murder in the second degree (twocounts), assault in the first degree, robbery in the second degree, criminal possession of a weaponin the second degree, and attempted robbery in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's request fora missing witness charge. The defendant failed to meet his initial burden to demonstrate that thewitness, who could not be located despite diligent efforts and who was hostile to the People, wasunder the People's control (see People vLembhard, 154 AD3d 686 [2017]).
Contrary to the defendant's contention, he was not deprived of a fair trial because theSupreme Court declined to give an interested witness charge for a witness who testified pursuantto a cooperation agreement. The court's charge as a whole, including an instruction that the jurymay consider whether a witness hopes for or expects to receive a benefit for testifying and, if so,whether that benefit affects the truthfulness of the witness's testimony, "adequately conveyed tothe jury the appropriate standard by which to evaluate the testimony of that witness" (People v Kettreis, 19 AD3d 706,707 [2005]; see People v Jones, 138AD3d 1144, 1144-1145 [2016]).
Furthermore, contrary to the defendant's contention, the People did not violate theirobligations under Brady v Maryland (373 US 83 [1963]). "To establish a Bradyviolation, a defendant must show that the evidence is favorable to the defendant because it iseither exculpatory or impeaching in nature, the evidence was suppressed by the prosecution, andprejudice arose because the suppressed evidence was material" (People v Breland, 178 AD3d 716,717 [2019]). "Brady does not require that disclosure be made at any particular point in theproceedings, but only that it be made in time for the defense to use it effectively" (People v McClinton, 180 AD3d712, 713 [2020]). Here, defense counsel conceded that a description of the perpetrator wasturned over "a week" prior to the commencement of the trial, and the defendant did not seek tocall the individual who provided the description. Since there is no indication that the Peoplesuppressed that evidence or that earlier disclosure might have had any effect on the outcome ofthe trial, the defendant failed to establish a Brady violation (see id.; People v Smith, 171 AD3d 1102,1104 [2019]). Further, there is no indication that the People suppressed either a witness'sstatement regarding his description of a vehicle or a witness's cooperation agreement, and thedefendant was afforded a meaningful opportunity to use such evidence at trial (see People v Tripp, 162 AD3d691, 692 [2018]).
The defendant's contention that he was deprived of a fair trial because the People elicitedtestimony on cross-examination of a defense witness indicating that the defendant wasincarcerated pending trial is unpreserved for appellate review (see CPL 470.05 [2]; People v Zelaya, 170 AD3d 1206[2019]). In any event, under the circumstances presented, the prosecutor's cross-examination of adefense witness regarding the defendant's incarceration was not so egregious as to deprive thedefendant of a fair trial (see People vWilson, 141 AD3d 737, 738 [2016]). Moreover, any error was otherwise harmlessbecause there was overwhelming evidence of the defendant's guilt and no significant probabilitythat any error contributed to his convictions (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Thomas,65 AD3d 1170, 1171-1172 [2009]).
The defendant's contention that certain remarks made by the prosecutor during summationrequire reversal is unpreserved for appellate review, since the defendant either failed to object tothe remarks at issue or made only a general objection, and he failed to make a timely motion for amistrial on the specific grounds he now asserts on appeal (see CPL 470.05 [2]; People v Willis, 165 AD3d 984,985 [2018]). In any event, the challenged portions of the prosecutor's summation either were faircomment on the evidence and the reasonable inferences to be drawn therefrom, fair response tothe defense summation, permissible rhetorical comment, or do not otherwise require reversal (see People v Rodriguez, 175 AD3d721 [2019]; People v Carter,152 AD3d 786 [2017]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review, and, in anyevent, without merit. Scheinkman, P.J., Rivera, Balkin and Iannacci, JJ., concur.