Opinion
2013-02-1
The PEOPLE of the State of New York, Respondent, v. Johnny ROGERS, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, and MARTOCHE, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that the 19–year preindictment delay violated his right to a speedy trial and his due process right to prompt prosecution. We reject that contention. In examining the Taranovich factors ( People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we conclude that, although the 19–year preindictment delay was substantial, the nature of the underlying charge was serious, and defendant remainedat liberty until he was indicted. Moreover, the People met their burden of establishing good cause for the delay ( see People v. Decker, 13 N.Y.3d 12, 14–16, 884 N.Y.S.2d 662, 912 N.E.2d 1041;People v. Chatt, 77 A.D.3d 1285, 1285, 908 N.Y.S.2d 500,lv. denied17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096). Indeed, they established that there was insufficient evidence to charge defendant shortly after the crimes occurred, and it was not until the statements of three witnesses were obtained and DNA testing was completed that the People brought the charges against defendant. The People's decision to bring the charges against defendant many years later “was not an abuse of the significant amount of discretion that the People must of necessity have, and there is no indication that the decision was made in anything other than good faith” ( Decker, 13 N.Y.3d at 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041). We further conclude that, while the delay may have caused some degree of prejudice to defendant, “there is no indication that the defense was significantly impaired by the delay” ( id.). Contrary to defendant's further contention, there was no need for a Singer hearing ( People v. Singer, 44 N.Y.2d 241, 255, 405 N.Y.S.2d 17, 376 N.E.2d 179) because no issue of fact exists regarding the cause of the delay and because the record provided County Court with a sufficient basis to determine whether the delay was justified ( see People v. Gathers, 65 A.D.3d 704, 704, 883 N.Y.S.2d 913,lv. denied13 N.Y.3d 859, 891 N.Y.S.2d 694, 920 N.E.2d 99;cf. People v. Watts, 78 A.D.2d 1008, 1009, 433 N.Y.S.2d 669).
We reject defendant's contention that the court abused its discretion in denying his request for an adjournment after the People turned over alleged Brady material less than a week before the trial. “ ‘[T]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice’ ” ( People v. Peterkin, 81 A.D.3d 1358, 1360, 921 N.Y.S.2d 744,lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102). Even assuming, arguendo, that the interdepartmental memo of the police department was Brady material, we conclude that defendant had a meaningful opportunity to use it at trial and thus was not prejudiced by the denial of his request for an adjournment.
Defendant next contends that the court erred in denying his challenges for cause to two prospective jurors. Initially, we note that, contrary to the People's contention, defendant exhausted all of his peremptory challenges, and thus the issue is properly before us ( seeCPL 270.20[2] ). On the merits, however, we agree with the People that the court properly denied the challenges. It is well settled that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the prospective juror states unequivocally on the record that he or she can be fair and impartial” ( People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;see People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246). Here, while the two prospective jurors stated that they knew victims of domestic violence, nothing said by them on that issue raised a serious doubt as to their ability to render an impartial verdict ( see People v. Turner, 6 A.D.3d 1190, 1190, 775 N.Y.S.2d 689,lv. denied3 N.Y.3d 649, 782 N.Y.S.2d 420, 816 N.E.2d 210). Their responses were unequivocal despite their use of the word “think” ( see People v. Odum, 67 A.D.3d 1465, 1465, 890 N.Y.S.2d 241,lv. denied14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942,15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227,cert. denied ––– U.S. ––––, 131 S.Ct. 326, 178 L.Ed.2d 212). The second prospective juror at issue also made statements indicating that he would find a police officer more credible than someone else. Thus, in order to avoid excusing that juror, it was incumbent upon the court to elicit an unequivocal assurance of the prospective juror's ability to be impartial ( see People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008), which the court here did. The court asked the prospective juror at issue if he would follow an instruction that he was not to give any greater weight to a police officer's testimony, and the prospective juror responded, “yes. If it was an order, yes, I would.”
Contrary to defendant's further contention, the court properly admitted testimony regarding prior incidents of domestic violence by defendant against the victim, i.e., his wife, because it was probative of defendant's motive, intent, and identity ( see People v. Kelly, 71 A.D.3d 1520, 1521, 897 N.Y.S.2d 353,lv. denied15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057;People v. Colbert, 60 A.D.3d 1209, 1212, 875 N.Y.S.2d 339;People v. Parsons, 30 A.D.3d 1071, 1073, 816 N.Y.S.2d 271,lv. denied7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807). The evidence of domestic violence perpetrated by defendant against a witness was also properly admitted because it was inextricably interwoven with that witness's testimony ( see generally People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88). Additionally, contrary to defendant's contention, the court weighed the probative value of the domestic violence evidence against its prejudicial impact ( see People v. DiTucci, 81 A.D.3d 1249, 1250, 916 N.Y.S.2d 424,lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097), and the prejudicial impact of that evidence was minimized by the court's limiting instructions ( see People v. Carson, 4 A.D.3d 805, 806, 771 N.Y.S.2d 775,lv. denied2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468).
Defendant failed to preserve for our review his contention that hearsay testimony from a witness regarding the victim's pregnancy violated his right of confrontation ( see People v. Rivera, 33 A.D.3d 450, 450–451, 823 N.Y.S.2d 14,lv. denied7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999) and, in any event, that contention lacks merit inasmuch as defendant opened the door to such testimony ( see People v. Reid, 19 N.Y.3d 382, 388, 948 N.Y.S.2d 223, 971 N.E.2d 353). Contrary to defendant's contention, his right to remain silent was not violated by the testimony of a police officer that defendant waived his Miranda warnings and provided an oral statement, but refused to provide an affidavit ( see People v. Hendricks, 90 N.Y.2d 956, 957, 665 N.Y.S.2d 45, 687 N.E.2d 1328;People v. Beecham, 74 A.D.3d 1216, 1217, 904 N.Y.S.2d 727,lv. denied15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811,reconsideration denied16 N.Y.3d 856, 923 N.Y.S.2d 418, 947 N.E.2d 1197). Defendant's further contention that the testimony of another police officer also violated his right to remain silent is not preserved for our review ( see People v. Larsen, 145 A.D.2d 976, 977, 536 N.Y.S.2d 347,lv. denied73 N.Y.2d 1017, 541 N.Y.S.2d 772, 539 N.E.2d 600), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Defendant next contends that the court erred in refusing to admit in evidence a prior inconsistent statement of a prosecution witness. The contents of that affidavit were essentially put before the jury during cross-examination of the witness, and the decision whether to admit the affidavit in evidence was therefore within the court's discretion ( see People v. Piazza, 48 N.Y.2d 151, 164–165, 422 N.Y.S.2d 9, 397 N.E.2d 700). We perceive no abuse of discretion in the court's refusal to do so ( see People v. Lewis, 277 A.D.2d 1022, 1022–1023, 716 N.Y.S.2d 179,lv. denied96 N.Y.2d 802, 726 N.Y.S.2d 380, 750 N.E.2d 82).
Defendant also contends that certain conduct by the prosecutor denied him a fair trial. We agree with defendant that it was improper for the prosecutor to imply during the testimony of a witness that defendant had an obligation to call another witness ( see People v. Grice, 100 A.D.2d 419, 422, 474 N.Y.S.2d 152), but we conclude that the court's curative instruction was sufficient to alleviate any prejudice to defendant ( see People v. Smith, 88 A.D.3d 487, 488, 930 N.Y.S.2d 450;People v. Peterson, 71 A.D.3d 1419, 1420, 897 N.Y.S.2d 361,lv. denied14 N.Y.3d 891, 903 N.Y.S.2d 779, 929 N.E.2d 1014). Additionally, even assuming, arguendo, that certain comments by the prosecutor on summation impermissibly shifted the burden of proof ( see People v. Grant, 94 A.D.3d 1139, 1141, 942 N.Y.S.2d 223), we conclude that the comments were not so pervasive or egregious as to deny defendant a fair trial ( see People v. Caldwell, 98 A.D.3d 1272, 1273, 951 N.Y.S.2d 293). Defendant's further contention that the prosecutor failed to correct allegedly false testimony by one of the expert witnesses is not preserved for our review ( see People v. Golson, 93 A.D.3d 1218, 1219–1220, 940 N.Y.S.2d 423,lv. denied19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
We reject defendant's contention that the evidence is legally insufficient to establish that he was the perpetrator ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The evidence established that defendant made admissions to several different people that he killed his wife. We further conclude that, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Inasmuch as there was direct evidence of defendant's guilt consisting of his admissions to several witnesses that he killed his wife, we reject defendant's further contention that the court erred in failing to give a circumstantial evidence charge ( see People v. Casper, 42 A.D.3d 887, 888, 839 N.Y.S.2d 397,lv. denied9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023).
Defendant failed to preserve for our review his contention that the testimony of the experts violated his right of confrontation ( see People v. Encarnacion, 87 A.D.3d 81, 89, 926 N.Y.S.2d 446,lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027) and, in any event, that contention is without merit. Those experts relied on an autopsy report and DNA paternity report, respectively, but the actual reports were not admitted in evidence. “Out-of-court statements that are related by [an] expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause” ( Williams v. Illinois, ––– U.S. ––––, ––––, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 [June 18, 2012] ).
Defendant was not denied a fair trial based upon cumulative error ( see People v. Rumph, 93 A.D.3d 1346, 1348, 940 N.Y.S.2d 769,lv. denied19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217), and the court did not err when it sentenced defendant. The court did not base its sentence on a crime of which defendant had been acquitted ( cf. People v. Wilkonson, 281 A.D.2d 373, 374, 724 N.Y.S.2d 18,lv. denied96 N.Y.2d 926, 732 N.Y.S.2d 643, 758 N.E.2d 669), but rather sentenced him based on all the relevant facts and circumstances surrounding the crime of which he was convicted ( see People v. La Veglia, 215 A.D.2d 836, 837, 626 N.Y.S.2d 314). We have examined defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.