People v. Scott

• Citation: 204 A.D.3d 1395,166 N.Y.S.3d 774
• Decision Date: 22 April 2022
• Docket Number: 74,KA 20-00237
• Parties: The PEOPLE of the State of New York, Respondent, v. Jason SCOTT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 1395
166 N.Y.S.3d 774

The PEOPLE of the State of New York, Respondent,
v.
Jason SCOTT, Defendant-Appellant.

74
KA 20-00237

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

Entered: April 22, 2022

HAYDEN DADD, CONFLICT DEFENDER, GENESEO (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

204 A.D.3d 1395

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree ( Penal Law § 140.20 ) and petit larceny (§ 155.25). We affirm.

Defendant's contention that the prosecutor violated the duty of fair dealing and undermined the integrity of the grand jury proceeding by failing to divulge that two prosecution witnesses were accomplices who had received immunity for their testimony was not raised before defendant moved to set aside the verdict pursuant to CPL 330.30 (1) and is therefore unpreserved (see People v. Sheltray , 244 A.D.2d 854, 854-855, 665 N.Y.S.2d 224 [4th Dept. 1997], lv denied 91 N.Y.2d 897, 669 N.Y.S.2d 12, 691 N.E.2d 1038 [1998] ; see generally People v. Davidson , 98 N.Y.2d 738, 739-740, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002] ; People v. Padro , 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990], rearg denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119 [1990], rearg dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152 [1993] ). In any event, we conclude that defendant's contention is without merit inasmuch as the grand jury minutes reveal that the prosecutor properly divulged the witnesses’ immunity to the grand jury. Further, even assuming, arguendo, that the prosecutor erred in failing to properly divulge the witnesses’ immunity to the grand jury, we conclude that the single error does not constitute a pervasive, willful pattern of bias and misconduct such that the integrity of the grand jury proceeding was compromised (see People v. Wilcox , 194 A.D.3d 1352, 1355, 149 N.Y.S.3d 385 [4th Dept. 2021] ;

204 A.D.3d 1396

People v. Jones , 194 A.D.3d 1358, 1360, 148 N.Y.S.3d 558 [4th Dept. 2021], lv denied 37 N.Y.3d 1027, 153 N.Y.S.3d 424, 175 N.E.3d 450 [2021] ; see generally People v. Thompson , 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rearg denied 23 N.Y.3d 948, 987 N.Y.S.2d 601, 10 N.E.3d 1157 [2014] ).

166 N.Y.S.3d 776

We reject defendant's further contention that County Court erred in denying his request to charge the jury that one of the prosecution's witnesses was an accomplice as a matter of law (see generally People v. Sage , 23 N.Y.3d 16, 24-25, 988 N.Y.S.2d 104, 11 N.E.3d 177 [2014] ; People v. Basch , 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156 [1975] ). In light of the " ‘different inferences [that] may reasonably be drawn’ from the evidence" ( Sage , 23 N.Y.3d at 24, 988 N.Y.S.2d 104, 11 N.E.3d 177 ), the court properly submitted the issue of the witness's accomplice status to the jury (see People v. Kaminski , 90 A.D.3d 1692, 1692, 935 N.Y.S.2d 817 [4th Dept. 2011], lv denied 20 N.Y.3d 1100, 965 N.Y.S.2d 796, 988 N.E.2d 534 [2013] ; People v. Brink , 78 A.D.3d 1483, 1485, 910 N.Y.S.2d 606 [4th Dept. 2010], lv denied 16 N.Y.3d 742, 917 N.Y.S.2d 623, 942 N.E.2d 1048 [2011], reconsideration denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ).

Insofar as defendant contends that the People failed to present legally sufficient...