Opinion
2012-11-9
The PEOPLE of the State of New York, Respondent, v. Weldon YOUNG, Defendant–Appellant.
Wayne C. Felle, P.C., Williamsville (Wayne C. Felle of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
Wayne C. Felle, P.C., Williamsville (Wayne C. Felle of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ). Contrary to defendant's contention, Supreme Court properly determined, following a Cardona hearing ( see People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306), that a prosecution witness was not an agent of the prosecution when he obtained incriminating information from defendant with respect to the victim's death. Although the witness had testified in three prior trials after advising the prosecution, while he was incarcerated, that he had information about those respective crimes ( see id. at 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306), the record supports the court's determination that the prosecution did not seek information from the witness, but instead passively received the information the day before the trial began ( see People v. Davis, 38 A.D.3d 1170, 1171, 832 N.Y.S.2d 352,lv. denied9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882,cert. denied552 U.S. 1065, 128 S.Ct. 713, 169 L.Ed.2d 559;People v. Keith, 23 A.D.3d 1133, 1134, 804 N.Y.S.2d 206,lv. denied6 N.Y.3d 815, 812 N.Y.S.2d 454, 845 N.E.2d 1285). We reject defendant's further contention that the prosecutionsuborned perjury with respect to the testimony of that witness ( see generally People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207,lv. denied97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358). Although we agree with defendant that the credibility of the witness was challenged with taped telephone calls from the witness to an acquaintance of the victim that were admitted in evidence during defendant's cross-examination of the witness, we nevertheless conclude that the record does not support a determination that the People knowingly presented false testimony ( see generally People v. Dwyer, 234 A.D.2d 942, 943, 653 N.Y.S.2d 49). Rather, the credibility of the witness was properly an issue for the jury, which had the opportunity to hear his testimony and the taped telephone calls ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
By failing to object during summation, defendant failed to preserve for our review his further contention that the prosecutor committed reversible error by vouching for the credibility of the witness during summation ( seeCPL 470.05 [2]; People v. Hill, 82 A.D.3d 1715, 1715, 919 N.Y.S.2d 688,lv. denied17 N.Y.3d 806, 929 N.Y.S.2d 566, 953 N.E.2d 804). In any event, we conclude that the prosecutor's remarks were a fair response to defendant's summation, which attacked the credibility of the witness ( see People v. Foster, 59 A.D.3d 1008, 1009, 872 N.Y.S.2d 310,lv. denied12 N.Y.3d 816, 881 N.Y.S.2d 23, 908 N.E.2d 931), and a fair comment on the evidence ( see Hill, 82 A.D.3d at 1715, 919 N.Y.S.2d 688).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.