People v. Evans

• Decision Date: 01 April 2015
• Docket Number: 2010-05198, Ind. No. 1119/07.
• Citation: 127 A.D.3d 780,2015 N.Y. Slip Op. 02782,6 N.Y.S.3d 555
• Parties: The PEOPLE, etc., respondent, v. Eric EVANS, appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 780

6 N.Y.S.3d 555

2015 N.Y. Slip Op. 02782

The PEOPLE, etc., respondent

v.Eric EVANS, appellant.

2010-05198, Ind. No. 1119/07.

Supreme Court, Appellate Division, Second Department, New York.

April 1, 2015.

Seymour W. James, Jr., New York, N.Y. (Natalie Rea of counsel), for appellant, and appellant pro se.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ruth E. Ross of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered May 26, 2010, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

After excluding the periods of delay caused by the resolution of the defendant's motions and continuances requested by or consented to by the defendant (see People v. Torres, 60 N.Y.2d 119, 468 N.Y.S.2d 606, 456 N.E.2d 497 ; People v. Kopciowski, 68 N.Y.2d 615, 616–617, 505 N.Y.S.2d 52, 496 N.E.2d 211 ; People v. Lambert, 92 A.D.2d 550, 459 N.Y.S.2d 120, affd. 61 N.Y.2d 978, 475 N.Y.S.2d 280, 463 N.E.2d 621 ; People v. Morris, 94 A.D.3d 912, 913, 941 N.Y.S.2d 862 ; People v. Williams, 32 A.D.3d 403, 405, 821 N.Y.S.2d 604 ), as well as periods excludable as being upon “good cause shown” (Foran v. Metz, 463 F.Supp. 1088, 1097 [S.D.N.Y.], affd. 603 F.2d 212 [2d Cir.] ), the Supreme Court correctly concluded that fewer than 180 days were chargeable to the People under the Interstate Agreement on Detainers (hereinafter the IAD) (CPL 580.20, art. III[a] ). Thus, the Supreme Court properly denied the defendant's motion to dismiss the indictment based on the IAD.

The defendant's first trial had ended in a mistrial. The Supreme Court properly admitted the testimony of the defendant's sister from his first trial into evidence during the People's case at this retrial. A witness's testimony in a previous proceeding may be admitted as part of the People's direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness's unavailability” (People v. Cotto, 92 N.Y.2d 68, 75–76, 677 N.Y.S.2d 35, 699 N.E.2d 394 ; see People v. Geraci, 85 N.Y.2d 359, 365–366, 625 N.Y.S.2d 469, 649 N.E.2d 817 ; People v. Leggett, 107 A.D.3d 741, 966 N.Y.S.2d 219 ; People v. Major, 251 A.D.2d 999, 675 N.Y.S.2d 260 ). “Because of ‘the inherently surreptitious nature of witness tampering’ circumstantial evidence may be used ‘to establish, in whole or in part, that a witness's unavailability was procured by the defendant’ ” (People v. Cotto, 92 N.Y.2d at 76, 677 N.Y.S.2d 35, 699 N.E.2d 394, quoting People v. Geraci, 85 N.Y.2d at 369, 625 N.Y.S.2d 469, 649 N.E.2d 817 ; see People v. Dubarry, 107 A.D.3d 822, 967 N.Y.S.2d 132 ). Here, after 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, 415, 460 N.Y.S.2d 591 ), the Supreme Court properly determined that the defendant used his close relationship with his sister to persuade or pressure her into not testifying against him at the retrial (see People v. Leggett, 107 A.D.3d 741, 966 N.Y.S.2d 219 ; People v. Jernigan, 41 A.D.3d 331, 332, 838 N.Y.S.2d 81 ; People v. Major, 251 A.D.2d 999, 675 N.Y.S.2d 260 ).

After an additional Sirois hearing, the Supreme Court properly admitted the testimony of an additional witness from the first trial into evidence during the People's case at the retrial. CPL 670.10(1) authorizes the use of prior trial testimony where a witness is unavailable due to “illness or incapacity,” which, in this case, was established by evidence of the witness's severe mental illness and suicidal tendencies (see People v. Lombardi, 39 A.D.2d 700, 701, 332 N.Y.S.2d 749, affd. 33 N.Y.2d 658, 348 N.Y.S.2d 980, 303 N.E.2d 705 ; cf. People v. Slaughter, 163 A.D.2d 342, 557 N.Y.S.2d 926 ; People v. Del Mastro, 72 Misc.2d 809, 339 N.Y.S.2d 389 [Nassau County Ct.] ).

There is no merit to the defendant's contention, raised in his pro se supplemental brief, that the Supreme Court improperly curtailed cross-examination of certain prosecution witnesses (see People v. Standberry, 244 A.D.2d 584, 584–585, 665 N.Y.S.2d 931 ; People v. Jones, 239 A.D.2d 602, 603, 658 N.Y.S.2d 366 ).

The defendant's contentions regarding prosecutorial misconduct during cross-examination of him are unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ; People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276 ; People v. Salnave, 41 A.D.3d 872, 838 N.Y.S.2d 657 ), and, in any event, are without merit. The defendant's contentions that various remarks made by the prosecutor on summation were improper and deprived him of a fair trial are largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Dordal, 55 N.Y.2d 954, 956, 449 N.Y.S.2d 179, 434 N.E.2d 248 ; People v. Wright,

90 A.D.3d 679, 933 N.Y.S.2d 887 ). In any event, any improper remarks constituted harmless error, and did not deprive the defendant of a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Persaud, 98 A.D.3d 527, 529, 949 N.Y.S.2d 431 ; see also People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Rogers, 106 A.D.3d 1029, 965 N.Y.S.2d 361 ).

A jury note, marked as court exhibit 7, was revealed to the attorneys for the parties, read into the record, and addressed by the Supreme Court. Further, defense counsel stated on the record that he had no objection to the court's handling of the note....