People v. Halstead

• Decision Date: 24 February 1992
• Citation: 180 A.D.2d 818,580 N.Y.S.2d 413
• Parties: The PEOPLE, etc., Respondent, v. Dennis HALSTEAD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 413

580 N.Y.S.2d 413

180 A.D.2d 818

The PEOPLE, etc., Respondent, v. Dennis HALSTEAD, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 24, 1992.

Roy J. Lester, Garden City, for appellant.

Dennis Halstead, pro se.

Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and George Freed, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (O'Shaughnessy, J.), rendered February 6, 1987, convicting him of murder in the second degree (two counts), and rape in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's argument that his trial should have been severed from the trial of his codefendant because the quality and quantity of evidence against him was substantially different from that offered against the codefendant is unpreserved for appellate review (see, CPL 470.05[2]; People v. James, 116 A.D.2d 663, 497 N.Y.S.2d 730; People v. Amato, 99 A.D.2d 495, 470 N.Y.S.2d 441). In any event, the trial court did not improvidently exercise its discretion in denying the defendant's motion for a severance, which was made upon the ground that his codefendant had made a statement inculpating the defendant, because the codefendant testified at trial (see, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; People v. Griffin, 48 N.Y.2d 998, 425 N.Y.S.2d 547, 401 N.E.2d 905; People v. Anthony, 24 N.Y.2d 696, 301 N.Y.S.2d 961, 249 N.E.2d 747; People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109).

We reject the defendant's contention that his right to counsel was violated under the rule established by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. The trial court properly determined, after a hearing, that a fellow inmate of the defendant who testified to a confession made by the defendant while in jail was not acting as a police or government agent. The informer in this instance had provided the information on his own initiative, and not in response to any agreement, understanding, or prompting by the government (see, People v. Cardona, 41 N.Y.2d 333, 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306). Additionally, the mere fact that the informer in this case had previously acted as a police informant does not establish that he was presently acting as an agent of the police (see, People v. Farley, 120 A.D.2d 761, 501...