People v. Berger

• Decision Date: 30 December 1996
• Citation: 234 A.D.2d 980,653 N.Y.S.2d 461
• Parties: PEOPLE of the State of New York, Respondent, v. Richard BERGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 461

653 N.Y.S.2d 461

234 A.D.2d 980

PEOPLE of the State of New York, Respondent, v. Richard BERGER, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 30, 1996.

Robert Simels by James Brandon, New York City, for Appellant.

Howard R. Relin by Eilzabeth Clifford, Rochester, for Respondent.

Before GREEN, J.P., and LAWTON, FALLON, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

We reject the contention that defendant was denied a fair trial by the jury charge. Supreme Court properly marshalled the evidence (see, People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610). The court's instruction on reasonable doubt was proper in all respects (see, People v. Cubino, 88 N.Y.2d 998, 648 N.Y.S.2d 868, 671 N.E.2d 1265). The portions of the charge relating to the credibility of witnesses, the corroboration of accomplice testimony, the meaning of the indictment and the destruction of certain evidence by the police were also proper.

Defendant also contends that certain evidentiary rulings deprived him of his right to a fair trial and his right to present a complete defense and to confront witnesses. We disagree. The court did not abuse its discretion by precluding a defense ballistics expert from testifying because, contrary to the court's pretrial instructions, the report provided by the defense failed to set forth a synopsis of the expert's proposed testimony (see, CPL 240.30[1][a]; Matter of Mulvaney v. Dubin, 55 N.Y.2d 668, 446 N.Y.S.2d 931, 431 N.E.2d 292).

The court properly exercised its discretion in denying defendant's request that the jury be allowed to visit the scene of the crime. Nearly 10 years had passed since the homicide and the scene would likely have changed to the extent that viewing it would not help the jury decide a material fact (see, People v. Zocchi, 133 A.D.2d 478, 519 N.Y.S.2d 690; People v. Rao, 107 A.D.2d 720, 484 N.Y.S.2d 76). The court properly allowed the testimony of a witness regarding a statement made by codefendant, who was separately tried, pursuant to the coconspirator exception to the hearsay rule (see, People v. Salko, 47 N.Y.2d 230, 237, 417 N.Y.S.2d 894, 391 N.E.2d 976, mot to amend remittitur granted 47 N.Y.2d 1010, 420 N.Y.S.2d 223, 394 N.E.2d 292, rearg. denied 47 N.Y.2d 1012, 420 N.Y.S.2d 1025, 394 N.E.2d 308). The court also properly refused to admit into evidence photocopies of two receipts from a truck stop. The receipts did not indicate that they were for the purchase of clothing and were not signed by defendant or his cohort. The court properly excluded as irrelevant the testimony of a former assistant district attorney to the effect that defendant had been working with authorities on a large stolen car operation.

Defendant's right to free exercise of religion was not abridged when the court denied defendant's last minute request for an additional adjournment of trial until after a certain Jewish holiday. Pursuant to a previous request, the court had...