People v. Faison

• Decision Date: 07 October 1991
• Citation: 176 A.D.2d 752,574 N.Y.S.2d 977
• Parties: The PEOPLE, etc., Respondent, v. Anthony FAISON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 977

574 N.Y.S.2d 977

176 A.D.2d 752

The PEOPLE, etc., Respondent, v. Anthony FAISON, Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 7, 1991.

Philip L. Weinstein, New York City (Kerry Elgarten, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Ann Bordley and Sherry B. Bokser, of counsel), for respondent.

Before BRACKEN, J.P., and KOOPER, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered June 20, 1988, convicting him of murder in the second degree (two counts), attempted robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The facts underlying this appeal are set forth in the decision of the appeal of the codefendant Charles Shepherd (see, People v. Shepherd, 176 A.D.2d 766, 587 N.Y.S.2d 979 [decided herewith].

Contrary to the defendant's contention, his conviction need not be reversed as a result of an alleged Rosario violation by the prosecution. Subsequent to the testimony of the prosecution's primary witness to the instant robbery-homicide, counsel for the codefendant Charles Shepherd requested that the witness be recalled for further testimony in light of the belated disclosure of certain police reports which detailed alleged threats made against the witness which the defense claimed influenced her testimony. The witness had been examined with regard to several other threats on cross-examination, but the police reports in issue allegedly concerned additional threats of which the witness had complained to investigating detectives. The prosecutor concurred that the witness should be recalled and the court gave both defense attorneys an opportunity to review the reports to determine their strategies. Counsel for the codefendant Shepherd asked that he be permitted to reserve his decision as to whether to recall the witness, because he first wished to cross-examine the prosecution's next witness, the detective who compiled the reports. During this entire discussion, counsel for the defendant Faison complained only that the belatedly disclosed materials should have been disclosed earlier during the trial, and that portions of the reports were illegible.

The prosecution did indeed next call the detective who had authored the reports in question. His direct testimony concerned only his observations of the scene of the crime. Thereafter, the counsel for the defendant Faison declined to cross-examine the detective, yielding this task instead to counsel for the codefendant Shepherd. The counsel for Shepherd, however, made no inquiry regarding the threats allegedly directed at the People's main witness. Thereafter, the prosecution rested.

Various matters were discussed by the court and counsel, including, inter alia, the logistics of a jury visit to the scene of the crime. Once this matter was settled, both the defendants rested. The visit to the crime scene was conducted, and the following day summations were given. The court then charged the jury. The jury returned its guilty verdicts without any further colloquy...