People v. Brockenshire

• Decision Date: 31 December 1997
• Parties: 1997 N.Y. Slip Op. 11,683 PEOPLE of the State of New York, Respondent, v. Dennis J. BROCKENSHIRE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 73

666 N.Y.S.2d 73

1997 N.Y. Slip Op. 11,683

PEOPLE of the State of New York, Respondent, v. Dennis J. BROCKENSHIRE, Appellant.

Supreme Court of New York, Appellate Division Fourth Department.

Dec. 31, 1997.

John Cirando, Syracuse, for appellant.

Michael Nevins, Little Valley, for respondent.

MEMORANDUM:

Defendant was not deprived of a fundamental right because a Sandoval hearing was not conducted before he testified before the Grand Jury or because defense counsel and the prosecutor stipulated, in his absence, to the admissibility of defendant's past convictions. The holding in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, has not been extended to Grand Jury proceedings (see, People v. Thomas, 213 A.D.2d 73, 78-79, 628 N.Y.S.2d 707, affd. 88 N.Y.2d 821, 644 N.Y.S.2d 491, 666 N.E.2d 1364; see also, People v. Jones, 239 A.D.2d 234, 657 N.Y.S.2d 641; People v. Hawkins, 216 A.D.2d 414, 415, 628 N.Y.S.2d 728, lv. denied 86 N.Y.2d 842, 634 N.Y.S.2d 452, 658 N.E.2d 230).

County Court did not abuse its discretion in permitting an investigator to testify to his observations at the crime scene and to his conclusions, based upon those observations, concerning the sequence of the firing of the three bullets and their trajectories after they hit the victim's vehicle. Because the investigator had 17 years of practical experience and had investigated 150 shootings, his lack of formal education in ballistics and trajectories did not disqualify him from so testifying (see, Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398, 34 N.E.2d 367; see also, People v. Rivera, 236 A.D.2d 428, 654 N.Y.S.2d 147, lv. denied 90 N.Y.2d 863, 661 N.Y.S.2d 190, 683 N.E.2d 1064; People v. Donaldson, 107 A.D.2d 758, 759, 484 N.Y.S.2d 123). In any event, the bulk of his testimony concerned his observations of physical evidence at the crime scene, testimony "not requiring any particular expertise" (Mead v. Reilly, 238 A.D.2d 484, 656 N.Y.S.2d 653, lv. dismissed in part and denied in part 90 N.Y.2d 930, 664 N.Y.S.2d 263, 686 N.E.2d 1358).

Defendant was not denied a fair trial by prosecutorial misconduct on summation; the prosecutor's comments were fair response to defense counsel's summation (see, People v. Rivera, 158 A.D.2d 344, 551 N.Y.S.2d 34, lv. denied 76 N.Y.2d 741, 558 N.Y.S.2d 903, 557 N.E.2d 1199; see generally, People v. Galloway 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885).

Defendant failed to preserve for our review his contention that the court erred in charging the jury concerning the voluntariness of his confession (see, CPL 470.05[2] ). In any event, the alleged errors in the court's charge raised by defendant neither prejudiced him nor deprived him of a fair trial. Defendant further contends that his standby counsel was ineffective. Defendant chose to proceed pro se and moved to dismiss standby counsel during trial. The court denied the motion, informing defendant that standby counsel would not "open his mouth unless you ask him" to do so....