People v. Forrest

• Decision Date: 17 July 1990
• Citation: 163 A.D.2d 213,558 N.Y.S.2d 60
• Parties: The PEOPLE of the State of New York, Respondent, v. Owen FORREST, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 60

558 N.Y.S.2d 60

163 A.D.2d 213

The PEOPLE of the State of New York, Respondent, v. Owen FORREST, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 17, 1990.

A.H. Saperstein, for respondent.

M.J. Briskey, for defendant-appellant.

Before MURPHY, P.J., and SULLIVAN, CARRO, MILONAS and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Nicholas Figueroa, J.), rendered December 4, 1986, convicting defendant, after a jury trial, of attempted murder in the second degree and sentencing him to an indeterminate term of imprisonment of from twelve and one-half to twenty five years, is affirmed.

Defendant and one other were tried for the shooting of Everton Brown on July 7, 1985. Defendant told his girlfriend, Hyacinth Blake, that he was going to "rip off" Brown and that she should call him to meet her. Later that day defendant informed his codefendant of his plan. Soon after, Blake met Brown, and defendant came "from nowhere", and pointed a gun at Brown and repeatedly shot him. Three witnesses viewed part of the incident. After three weeks of trial and subsequent to Brown's testifying, it was discovered that Brown had communicated with Detective Brown in the hospital by writing down the answers to the detective's questions. Although a summary of this interview had been entered on a "DD5" and turned over to the defense, this was the first time either the prosecutor or defense was aware of these written notes.

After the jury is sworn and before the prosecutor's opening statement, the prosecution is obligated to turn over to the defense any pre-trial statements of its witnesses relating to their testimony. (CPL 240.45(1)(a); People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. den., 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64.) However, a prosecutor's delay in turning over Rosario material will result in a reversal only where the defense is substantially prejudiced. (People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011.) No such prejudice occurred here. Defense counsel was able to recross-examine the complainant while in receipt of the delayed Rosario material and brought out several inconsistencies in his testimony. The written notes were not substantially different from the DD5 so as to require the defense to change its trial strategy.

The admission in evidence of the codefendant's statement constituted harmless error. "[W]here a nontestifying codefendant's confession incriminating the defendant is not directly admissible against the defendant * * *, the confrontation clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant and even if the defendant's own confession is admitted against him." (Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162; see also, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.) When considering whether the error in a Bruton case is harmless, "the court must determine on the basis of its own reading of the record the probable impact of the codefendant's admissions on the 'minds of an average jury' and whether they were sufficiently prejudicial to defendant to require reversal of the conviction and a new trial." (People v. Hamlin, 71 N.Y.2d 750, 758, 530 N.Y.S.2d 74, 525 N.E.2d 719, citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284.) In view of the overwhelming evidence against defendant, we do not find the introduction of the codefendant's statement to be sufficiently prejudicial as to warrant reversal.

It was error for the trial court to submit the elements of the crime to the jury in a written form. (People v. Gonzalez, 157 A.D.2d 625, 550 N.Y.S.2d 643; People v. Owens, 69 N.Y.2d 585, 516 N.Y.S.2d 619, 509 N.E.2d 314.) However, since defendant never raised any objection, the error is unpreserved and subject to harmless error analysis. In light of the overwhelming evidence of guilt, we find the error to be harmless beyond a reasonable doubt. (See, People v. Gonzalez, supra.)

All concur except MURPHY, P.J., who dissents in a memorandum as follows:

MURPHY, Presiding Justice (dissenting).

Appellant was denied a fair trial by the combined effect of the egregious Rosario violation and the improper admission of the non-testifying co-defend...