Opinion
231 KA 12-00793
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Jose MEJIA, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of murder in the second degree (Penal Law § 125.25[1], [3] ) and one count of robbery in the first degree (§ 160.15 [2] ). We reversed defendant's prior judgment of conviction on the ground that his statements to the police should have been suppressed (People v. Mejia, 64 A.D.3d 1144, 1145–1146, 882 N.Y.S.2d 621, lv. denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100 ). On this appeal following the retrial, defendant contends that Supreme Court erred in admitting in evidence the codefendant's testimony from the first trial. We reject defendant's contention that the admission of the prior testimony violated his right of confrontation or CPL 670.10(1) (see People v. Knowles, 79 A.D.3d 16, 24, 911 N.Y.S.2d 483, lv. denied 16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 ). The codefendant refused to testify based on his belief that his plea agreement with the People did not require him to testify twice, and his refusal to testify constituted incapacity inasmuch as the court threatened to hold the codefendant in contempt, and indeed did hold him in contempt, for his refusal to testify (see Knowles, 79 A.D.3d at 24–25, 911 N.Y.S.2d 483 ; People v. Barber, 2 A.D.3d 1290, 1291, 770 N.Y.S.2d 537, lv. denied 2 N.Y.3d 761, 778 N.Y.S.2d 779, 811 N.E.2d 41 ). Contrary to defendant's further contention, the court did not abuse its discretion in not allowing the codefendant to be called to the stand and refuse to testify in front of the jury (see generally People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 415 N.E.2d 931 ; People v. Dixon, 149 A.D.2d 613, 613, 540 N.Y.S.2d 285, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191 ), and in not charging the jury that the witness refused to testify (see generally People v. Tatro, 53 A.D.3d 781, 786–787, 862 N.Y.S.2d 154, lv. denied 11 N.Y.3d 835, 868 N.Y.S.2d 610, 897 N.E.2d 1094 ; People v. Zanghi, 256 A.D.2d 1120, 1121, 684 N.Y.S.2d 804, lv. denied 93 N.Y.2d 881, 689 N.Y.S.2d 443, 711 N.E.2d 657 ). We have considered defendant's remaining contention regarding the admission of the codefendant's prior testimony in evidence and conclude that it is without merit.
As we held in the prior appeal, the court “properly admitted the trial testimony of a witness concerning an admission by silence by defendant” (Mejia, 64 A.D.3d at 1145, 882 N.Y.S.2d 621 ). Defendant's contention that a proper foundation was not laid for that testimony is not preserved for our review (see CPL 470.05[2] ), and is without merit in any event inasmuch as “[t]he record supports the conclusion that defendant heard another person's statement accusing him of the crime” (People v. Frias, 250 A.D.2d 495, 496, 673 N.Y.S.2d 416, lv. denied 92 N.Y.2d 982, 683 N.Y.S.2d 763, 706 N.E.2d 751 ). 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 reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant contends that he was denied a fair trial based on a comment made by the prosecutor during summation. That comment, however, was a fair response to defense counsel's summation (see People v. Ross, 118 A.D.3d 1413, 1417, 988 N.Y.S.2d 756, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223 ; People v. Lyon, 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291, lv. denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 ). In any event, that single remark was “ isolated and not so ... egregious as to warrant a reversal” (People v. Walker, 259 A.D.2d 1026, 1027, 688 N.Y.S.2d 326, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949 ). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.