People v. Rogers

• Decision Date: 01 February 2013
• Citation: 103 A.D.3d 1150,958 N.Y.S.2d 835,2013 N.Y. Slip Op. 00626
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Johnny ROGERS, Defendant–Appellant.

103 A.D.3d 1150
958 N.Y.S.2d 835
2013 N.Y. Slip Op. 00626

The PEOPLE of the State of New York, Respondent,
v.
Johnny ROGERS, Defendant–Appellant.

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

Feb. 1, 2013.

[958 N.Y.S.2d 836]

Linda M. Campbell, Syracuse, for Defendant–Appellant.

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

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, and MARTOCHE, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ), defendant contends that the 19–year preindictment delay violated his right to a speedy trial and his due process right to prompt prosecution. We reject that contention. In examining the Taranovich factors ( People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we conclude that, although the 19–year preindictment delay was substantial, the nature of the underlying charge was serious, and defendant remained

[958 N.Y.S.2d 837]

at liberty until he was indicted. Moreover, the People met their burden of establishing good cause for the delay ( see People v. Decker, 13 N.Y.3d 12, 14–16, 884 N.Y.S.2d 662, 912 N.E.2d 1041;People v. Chatt, 77 A.D.3d 1285, 1285, 908 N.Y.S.2d 500,lv. denied17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096). Indeed, they established that there was insufficient evidence to charge defendant shortly after the crimes occurred, and it was not until the statements of three witnesses were obtained and DNA testing was completed that the People brought the charges against defendant. The People's decision to bring the charges against defendant many years later “was not an abuse of the significant amount of discretion that the People must of necessity have, and there is no indication that the decision was made in anything other than good faith” ( Decker, 13 N.Y.3d at 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041). We further conclude that, while the delay may have caused some degree of prejudice to defendant, “there is no indication that the defense was significantly impaired by the delay” ( id.). Contrary to defendant's further contention, there was no need for a Singer hearing ( People v. Singer, 44 N.Y.2d 241, 255, 405 N.Y.S.2d 17, 376 N.E.2d 179) because no issue of fact exists regarding the cause of the delay and because the record provided County Court with a sufficient basis to determine whether the delay was justified ( see People v. Gathers, 65 A.D.3d 704, 704, 883 N.Y.S.2d 913,lv. denied13 N.Y.3d 859, 891 N.Y.S.2d 694, 920 N.E.2d 99;cf. People v. Watts, 78 A.D.2d 1008, 1009, 433 N.Y.S.2d 669).

We reject defendant's contention that the court abused its discretion in denying his request for an adjournment after the People turned over alleged Brady material less than a week before the trial. “ ‘[T]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice’ ” ( People v. Peterkin, 81 A.D.3d 1358, 1360, 921 N.Y.S.2d 744,lv. denied17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102). Even assuming, arguendo, that the interdepartmental memo of the police department was Brady material, we conclude that defendant had a meaningful opportunity to use it at trial and thus was not prejudiced by the denial of his request for an adjournment.

Defendant next contends that the court erred in denying his challenges for cause to two prospective jurors. Initially, we note that, contrary to the People's contention, defendant exhausted all of his peremptory challenges, and thus the issue is properly before us ( seeCPL 270.20[2] ). On the merits, however, we agree with the People that the court properly denied the challenges. It is well settled that “a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the prospective juror states unequivocally on the record that he or she can be fair and impartial” ( People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953;see People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246). Here, while the two prospective jurors stated that they knew victims of domestic violence, nothing said by them on that issue raised a serious doubt as to their ability to render an impartial verdict ( see People v. Turner, 6 A.D.3d 1190, 1190, 775 N.Y.S.2d 689,lv. denied3 N.Y.3d 649, 782 N.Y.S.2d 420, 816 N.E.2d 210). Their responses were unequivocal despite their use of the word “think” ( see People v. Odum, 67 A.D.3d 1465, 1465, 890 N.Y.S.2d 241,lv. denied14 N.Y.3d 804, 899 N.Y.S.2d 138, 925 N.E.2d 942,15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227,cert. denied

[958 N.Y.S.2d 838]

––– U.S. ––––, 131 S.Ct. 326, 178 L.Ed.2d 212). The second prospective juror at issue also made statements indicating that he would find a police officer more credible than someone else. Thus, in order to avoid excusing that juror, it was incumbent upon the court to elicit an unequivocal assurance of the prospective juror's ability to be impartial ( see People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008), which the court here did. The court asked the prospective juror at issue if he would follow an instruction that he was not to give any greater weight to a police officer's testimony, and the prospective juror responded, “yes. If it was an order, yes, I would.”

Contrary to defendant's further contention, the court properly admitted testimony regarding prior incidents of domestic violence by defendant against the victim, i.e., his wife, because it was probative of defendant's motive, intent, and identity ( see People v. Kelly, 71 A.D.3d 1520, 1521, 897 N.Y.S.2d 353,lv. denied15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057;People v. Colbert, 60 A.D.3d 1209, 1212, 875 N.Y.S.2d 339;People v. Parsons, 30 A.D.3d 1071, 1073, 816 N.Y.S.2d 271,lv. denied7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807). The evidence of domestic violence perpetrated by defendant against a witness was also properly admitted because it was inextricably interwoven with that witness's testimony ( see generally People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88). Additionally, contrary to defendant's contention, the court weighed the probative value of the domestic violence evidence against its prejudicial impact ( see People v. DiTucci, 81 A.D.3d 1249, 1250, 916 N.Y.S.2d 424,lv. denied17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097), and the...