People v. Gonzales

• Decision Date: 23 December 2016
• Citation: 43 N.Y.S.3d 616,2016 N.Y. Slip Op. 08619,145 A.D.3d 1432
• Parties: The PEOPLE of the State of New York, Respondent, v. Josue GONZALES, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1432

43 N.Y.S.3d 616

2016 N.Y. Slip Op. 08619

The PEOPLE of the State of New York, Respondent,

v.Josue GONZALES, Defendant–Appellant.

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

Dec. 23, 2016.

Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.

Josue Gonzales, Defendant–Appellant pro se.

William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). Although we agree with defendant that certain actions of the prosecutor during the grand jury proceedings were improper, we conclude that County Court properly determined that the exceptional remedy of dismissal of the indictment is not warranted (see generally People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 ; People v. Elioff, 110 A.D.3d 1477, 1477–1478, 972 N.Y.S.2d 796, lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 ). To the extent that defendant challenges the sufficiency of the evidence before the grand jury, that contention is "not reviewable on this appeal from the ensuing judgment based upon legally sufficient trial evidence" (People v. Edgeston, 90 A.D.3d 1535, 1535–1536, 934 N.Y.S.2d 897, lv. denied 19 N.Y.3d 973, 950 N.Y.S.2d 355, 973 N.E.2d 765 ). Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Contrary to defendant's contention, the court did not err in allowing the prosecutor to introduce, on redirect examination, the prior consistent statement of a prosecution witness. Even assuming, arguendo, that the court erred in allowing the prior consistent statement under the rationale that the trial testimony of the witness was "assailed-either directly or inferentially-as a recent fabrication" by defense counsel on cross-examination (People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 ), we conclude that the court properly determined, as a second rationale, that defense counsel had opened the door to that testimony on cross-examination (see People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ). It is well established that "[w]here ... the opposing party ‘opens the door’ on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect ‘to explain, clarify and fully elicit [the] question only partially examined’ on cross-examination" (id. ). "[A] trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" (People v. Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ). In our view, once defense counsel elicited selected portions of the prior statement of the witness on cross-examination, the prosecutor was free to elicit the balance of the statement in order to give the evidence before the jury its full and accurate context. Contrary to defendant's further contention on this point, the court "allow[ed] [only] so much additional evidence to be introduced on redirect as [was] necessary to ‘meet what ha[d] been brought out in the meantime upon the cross-examination’ " (Melendez, 55 N.Y.2d at 452, 449 N.Y.S.2d 946, 434 N.E.2d 1324 ).

Contrary to the contention of defendant, he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 141, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Defense counsel's failure to obtain an expert on identification evidence does not constitute ineffective assistance of counsel inasmuch as " ‘[d]efendant has not demonstrated that such testimony was available, that it would have assisted the jury in its determination or that he was prejudiced by its absence’ " (People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403 ). Furthermore, "[d]efense counsel's failure to request a missing witness charge did not constitute ineffective assistance of counsel [inasmuch as t]here was no indication that the witness would have provided noncumulative testimony favorable to the People" (People v. Smith, 118 A.D.3d 1492, 1493, 988 N.Y.S.2d 819, lv. denied 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 ). Lastly, defendant failed to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged error in failing to request an "expanded" single eyewitness jury instruction (see generally People v. Stanley, 108 A.D.3d 1129, 1130, 970 N.Y.S.2d 136, lv. denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 ).

Defendant also contends that he was deprived of a fair trial based on improper remarks from the prosecutor during the cross-examination of witnesses and during opening and closing statements. Defendant failed to preserve his contention for our review with respect to many of the instances of alleged misconduct (see CPL 470.05[2] ). In any event, we reject defendant's contention inasmuch as "[r]eversal on grounds of prosecutorial misconduct ‘is mandated only when the conduct has caused such substantial prejudice to the defendant that he has been denied due process of law’ " (People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 3 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114 ). To the extent that any of the prosecutor's comments during opening or closing statements exceeded the bounds of propriety, we conclude that they " ‘were not so pervasive or egregious as to deprive defendant of a fair trial’ " (People v. Jackson, 108 A.D.3d 1079, 1080, 968...