People v. Saddler

• Decision Date: 29 September 1995
• Citation: 632 N.Y.S.2d 361,219 A.D.2d 796
• Parties: PEOPLE of the State of New York, Respondent, v. Christopher SADDLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 361

632 N.Y.S.2d 361

219 A.D.2d 796

PEOPLE of the State of New York, Respondent, v. Christopher SADDLER, Appellant.

Supreme Court, Appellate Division Fourth Department.

Sept. 29, 1995.

Linda S. Reynolds by Vincent Gugino, Buffalo, for appellant.

Kevin M. Dillon by Donna Millins, Buffalo, for respondent.

Before DENMAN, P.J., and PINE, WESLEY, BALIO and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of four counts of murder in the second degree, three counts of robbery in the first degree, two counts of criminal possession of a weapon in the third degree, grand larceny in the fourth degree and unauthorized use of a vehicle in the third degree.

Defendant failed to preserve for our review his contention that his conviction of grand larceny in the fourth degree and unauthorized use of a vehicle in the third degree is not supported by legally sufficient evidence (see, People v. Lawrence, 85 N.Y.2d 1002, 630 N.Y.S.2d 963, 654 N.E.2d 1211; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

There is no merit to the contention of defendant that he was denied his constitutional rights of confrontation and compulsory process by the trial court's refusal to permit a prosecution witness to be recalled, after the prosecution had rested, for further cross-examination. The determination whether to reopen a case for further testimony is addressed to the reasonable discretion of the trial court (see, People v. Ventura, 35 N.Y.2d 654, 360 N.Y.S.2d 419, 318 N.E.2d 609) and it cannot be said that, under the circumstances of this case, the trial court abused that discretion (see, People v. Frieson, 103 A.D.2d 1009, 478 N.Y.S.2d 213).

The 2 1/2 week delay in the trial due to the illness of the Trial Judge neither prejudiced defendant nor deprived him of a fair trial (see, People v. Cooper, 173 A.D.2d 551, 570 N.Y.S.2d 147, lv. denied 78 N.Y.2d 921, 573 N.Y.S.2d 473, 577 N.E.2d 1065).

There is no merit to the contention of defendant that the court should have precluded the testimony of a prosecution witness regarding her conversation with defendant in the Erie County Hall. Contrary to the assertion of defendant, the record supports the court's decision, after a Cardona hearing (see, People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306), that the witness was not acting as an agent of the District Attorney's Office (see, People v. Branshaw, 177 A.D.2d 1028, 578 N.Y.S.2d 45, lv. denied 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206). Rather, the witness provided information regarding the conversation on her own initiative (see, People v. Nicholas, 199 A.D.2d 425, 605 N.Y.S.2d 344, lv. denied 83 N.Y.2d 808, 611 N.Y.S.2d 144, 633 N.E.2d 499; see also, People v. Cardona, supra, at 335, 392 N.Y.S.2d 606, 360 N.E.2d 1306).

Defendant was not deprived of a fair trial by prosecutorial misconduct during summation (see, People v. Hargrave, 210 A.D.2d 971, 621 N.Y.S.2d 998, lv. denied 85 N.Y.2d 938, 627 N.Y.S.2d 1000, 651 N.E.2d 925; People v. Plant, 138...