Opinion
06-20-2024
The PEOPLE, etc., respondent, v. Darryl WHITE, appellant.
Patricia Pazner, New York, NY (David Fitzmaurice and Covington & Burling LLP [Harrison A. Newman], of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, and Jaedon J. Huie of counsel), for respondent.
Patricia Pazner, New York, NY (David Fitzmaurice and Covington & Burling LLP [Harrison A. Newman], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, and Jaedon J. Huie of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered June 28, 2018, convicting him of robbery in the first degree, tampering with a witness in the third degree, conspiracy in the fifth degree, and criminal contempt in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Following a jury trial, the defendant was convicted of robbery in the first degree, tampering with a witness in the third degree, conspiracy in the fifth degree, and criminal contempt in the second degree.
[1] The defendant’s contention that the Supreme Court improperly discharged a sworn juror during jury selection without conducting an appropriate inquiry is without merit. The juror informed the court of a medical issue that would have prevented her from being present for several days of trial. When asked by the court if she could reschedule her treatment, the juror stated that she could not do so, Upon receiving this information, the court providently exercised its discretion in discharging the juror prior to empanelment (see CPL 270.15[3]; People v. Oyewole, 220 A.D.2d 624, 633 N.Y.S.2d 41; see also People v. Dumervil, 205 A.D.3d 923, 924, 166 N.Y.S.3d 595).
[2] After conducting a Sirois hearing (see People v. Sirois, 92 A.D.2d 618, 459 N.Y.S.2d 813; Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591), the Supreme Court correctly determined that the previously cooperative complainant had been rendered unavailable due to the misconduct of the defendant and thus, properly permitted the People to introduce at trial the complainant’s statements to police and the prosecution, his grand jury testimony, and his identification of the defendant at the police lineup (see People v. Cotto, 92 N.Y.2d 68, 677 N.Y.S.2d 35, 699 N.E.2d 394; People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817; People v. Nibbs, 222 A.D.3d 883, 885, 202 N.Y.S.3d 255; People v. Evans, 116 A.D.3d 879, 880, 983 N.Y.S.2d 439). The People were not obligated to prove, by clear and convincing evidence, that the hearsay statements themselves were reliable (see People v. Cotto, 92 N.Y.2d at 77-78, 677 N.Y.S.2d 35, 699 N.E.2d 394; People v. Geraci, 85 N.Y.2d at 368, 625 N.Y.S.2d 469, 649 N.E.2d 817). In any event, the hearsay statements were not "so devoid of reliability as to offend due process" (People v. Cotto, 92 N.Y.2d at 78, 677 N.Y.S.2d 35, 699 N.E.2d 394; see People v. Wilson, 115 A.D.3d 891, 891, 981 N.Y.S.2d 812).
[3] Contrary to the defendant’s contention, the Supreme Court properly permitted the People to introduce into evidence recordings of telephone calls in which the defendant participated while he was incarcerated at Rikers Island Correctional Facility, as the probative value of the recordings outweighed any prejudice to the defendant (see People v. Porter, 210 A.D.3d 1012, 1013, 179 N.Y.S.3d 147; People v. Carmona, 185 A.D.3d 600, 603, 126 N.Y.S.3d 705, mod 37 N.Y.3d 1016, 152 N.Y.S.3d 872, 174 N.E.3d 1246). The court’s limiting instructions regarding this evidence "adequately minimized any resulting prejudice" (People v. Doane, 212 A.D.3d 875, 881, 181 N.Y.S.3d 364).
[4] The defendant’s challenges to various comments made during summation are unpreserved for appellate review (see CPL 470.05[2]; People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017; People v. Mosquero, 128 A.D.3d 985, 10 N.Y.S.3d 137). In any event, the challenged comments constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668), were responsive to arguments and theories presented in defense counsel’s summation (see People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668), or were permissible rhetorical comment (see People v. Ashwal, 39 N.Y.2d at 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668).
The defendant was not deprived of the effective assistance of counsel (see Strickland . v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 146-147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant’s remaining contentions are without merit.
IANNACCI, J.P, GENOVESI, DOWLING and TAYLOR, JJ., concur.