Opinion
2012-03-16
The PEOPLE of the State of New York, Respondent, v. Stuart J. DIZAK, Defendant–Appellant.
Bernard H. Udell, Brooklyn, for Defendant–Appellant.
Bernard H. Udell, Brooklyn, for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of conspiracy in the second degree (Penal Law § 105.15) and criminal solicitation in the second degree (§ 100.10). We conclude at the outset, to the extent the People contend that the appeal must be dismissed because defendant failed to serve his notice of appeal in a timely manner, that contention lacks merit. Pursuant to CPL 460.10(1) (b), “[i]f the defendant is the appellant, he [or she] must, within [30 days after sentence is imposed], serve a copy of [the] notice of appeal upon the district attorney of the county embracing the criminal court in which the judgment ... being appealed was entered.” Any defect in service of the notice of appeal here, however, is not fatal. “[T]he People waived any objection to defendant's failure to serve the notice of appeal by responding to his appeal on the merits rather than filing a motion to dismiss the appeal at some earlier juncture ... The People, moreover, have failed to demonstrate any prejudice as a result of defendant's alleged failure to comply with CPL 460.10(1)(b)” ( People v. Sayles, 292 A.D.2d 641, 642, 739 N.Y.S.2d 475 n, lv. denied 98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235).
Turning to the merits, we reject defendant's contention that County Court erred in limiting his cross-examination of the second coconspirator to testify. We agree with defendant, however, that the court erred in limiting his cross-examination of the first coconspirator to testify. “[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” ( People v. Gross, 71 A.D.3d 1526, 1527, 896 N.Y.S.2d 557, lv. denied 15 N.Y.3d 774, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted] ). Although the court providently exercised its discretion by refusing to permit defendant to inquire with respect to that witness's youthful offender adjudication ( see People v. Smith, 90 A.D.3d 1565, 1566, 935 N.Y.S.2d 775; see generally People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 338 N.E.2d 619), it erred in limiting defendant's cross-examination concerning the circumstances underlying the youthful offender adjudication and that witness's disorderly conduct conviction ( see People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444; People v. Lucius, 289 A.D.2d 963, 964, 737 N.Y.S.2d 717, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840; see generally Gross, 71 A.D.3d at 1527, 896 N.Y.S.2d 557). “We ... conclude, however, that the error is harmless where, as here, ‘the witness['s] prior criminal history was extensively explored on cross-examination[,] although not totally or definitively set forth as the defendant may have wished’ ... The record establishes that the court permitted defense counsel to impeach the witness with a litany of other prior bad acts, and thus we conclude that there is no reasonable possibility that the error might have contributed to defendant's conviction” ( Lucius, 289 A.D.2d at 964, 737 N.Y.S.2d 717; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787). We reject defendant's further contention that the People violated CPL 240.45 based on their failure to comply with their relevant disclosure obligations ( see People v. Griffin, 48 A.D.3d 894, 895, 851 N.Y.S.2d 718, lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449).
Contrary to defendant's contention, the court's Molineux ruling was not an abuse of discretion ( see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263; People v. DiTucci, 81 A.D.3d 1249, 1250, 916 N.Y.S.2d 424, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097). The evidence in question was relevant to defendant's motive and intent ( see People v. Kelly, 71 A.D.3d 1520, 1521, 897 N.Y.S.2d 353, lv. denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057; see also People v. Bryant, 74 A.D.3d 1794, 1795, 902 N.Y.S.2d 868, lv. denied 15 N.Y.3d 802, 908 N.Y.S.2d 162, 934 N.E.2d 896, 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812). In addition, the court “properly balanced the probative value of the evidence against its potential for prejudice to defendant” ( People v. Presha, 83 A.D.3d 1406, 1407, 919 N.Y.S.2d 713; see Kelly, 71 A.D.3d at 1521, 897 N.Y.S.2d 353). Defendant failed to preserve for our review two of his six contentions concerning alleged instances of prosecutorial misconduct and, in any event, “ ‘any alleged [prosecutorial] misconduct was not so pervasive or egregious as to deprive defendant of a fair trial’ ” ( People v. Szyzskowski, 89 A.D.3d 1501, 1503, 933 N.Y.S.2d 497).
We further conclude that the court properly permitted the prosecutor to rehabilitate the second coconspirator to testify on redirect examination. Defense counsel incorrectly impeached that witness on cross-examination by establishing that he omitted a material fact, i.e., his agreement to kill defendant's ex-wife, when he provided a statement to law enforcement authorities shortly after defendant solicited him to kill defendant's ex-wife ( see generally People v. Victory, 33 N.Y.2d 75, 88–89, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109). There is no evidence in the record that the witness was specifically asked during the subject interaction with authorities whether he agreed to commit the murder, nor was it unnatural for that witness, who was incarcerated at the time, to have omitted that detail from his statements to the authorities ( see People v. Broadhead, 36 A.D.3d 423, 424, 827 N.Y.S.2d 138, lv. denied 8 N.Y.3d 919, 834 N.Y.S.2d 510, 866 N.E.2d 456; People v. Byrd, 284 A.D.2d 201, 728 N.Y.S.2d 134, lv. denied 97 N.Y.2d 679, 738 N.Y.S.2d 294, 764 N.E.2d 398; see also People v. Savage, 50 N.Y.2d 673, 679, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475). Defendant failed to preserve for our review his challenges to the jury instructions inasmuch as he did not raise those challenges at trial ( see People v. Knapp, 79 A.D.3d 1805, 1807, 913 N.Y.S.2d 470, lv. denied 17 N.Y.3d 807, 808, 929 N.Y.S.2d 567, 953 N.E.2d 805), and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).
We reject the further contention of defendant that the court erred in denying after a hearing his motion pursuant to CPL 330.30, which was based on his alleged inability to hear the proceedings. Defendant's allegations concerning his hearing impairment were refuted by the People's witnesses at the hearing, who collectively described his reaction to testimony and statements at trial and testified that defendant never complained that he was unable to hear the proceedings. “There is no basis to disturb the court's fact-findings and credibility determinations, which are entitled to great deference on appeal” ( People v. Romano, 8 A.D.3d 503, 504, 778 N.Y.S.2d 517, lv. denied 3 N.Y.3d 711, 785 N.Y.S.2d 39, 818 N.E.2d 681).
Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to the intent element of his crimes because he failed to move for a trial order of dismissal on that ground ( see People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, defendant's challenge lacks merit. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to support the convictions ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). In addition, viewing the evidence in light of the elements of the crimes 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), we conclude that 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).
We reject the further contention of defendant that he was denied a fair trial based on various alleged errors. “Insofar as the contention of defendant that he was denied effective assistance of counsel involves matters outside the record on appeal, it must be raised by way of a motion pursuant to CPL article 440” ( see e.g. People v. Peters, 90 A.D.3d 1507, 1508, 934 N.Y.S.2d 734; People v. McKnight, 55 A.D.3d 1315, 1317, 864 N.Y.S.2d 224, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 13, 902 N.E.2d 447). To the extent that defendant's contention is properly before us, we conclude that it lacks merit ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.