People v. Tolliver

• Decision Date: 14 July 1995
• Citation: 217 A.D.2d 978,630 N.Y.S.2d 181
• Parties: PEOPLE of the State of New York, Respondent, v. Eric TOLLIVER, a/k/a Gerald Anthony King, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 181

630 N.Y.S.2d 181

217 A.D.2d 978

PEOPLE of the State of New York, Respondent, v. Eric TOLLIVER, a/k/a Gerald Anthony King, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

July 14, 1995.

Gerald T. Barth by Kimberly Jordan, Syracuse, for appellant.

William J. Fitzpatrick by James Maxwell, Syracuse, for respondent.

Before PINE, J.P., and FALLON, DOERR, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree. Defendant contends that the failure of the prosecutor to inform the Grand Jury that a prosecution witness had made a deal in exchange for favorable treatment impaired the integrity of the Grand Jury proceedings. That contention lacks merit. The People "maintain broad discretion in presenting their case to the Grand Jury and need not seek evidence favorable to the defendant or present all of their evidence tending to exculpate the accused" (People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 626 N.E.2d 630). The prosecutor need not present all evidence relevant to the credibility of witnesses because "[c]redibility is a collateral matter that generally does not materially influence a Grand Jury investigation" (People v. Morris, 204 A.D.2d 973, 974, 613 N.Y.S.2d 66, lv. denied 83 N.Y.2d 1005, 616 N.Y.S.2d 487, 640 N.E.2d 155; see also, People v. Dillard, 214 A.D.2d 1028, 627 N.Y.S.2d 184; People v. Perry, 187 A.D.2d 678, 590 N.Y.S.2d 251, lv. denied 81 N.Y.2d 891, 597 N.Y.S.2d 952, 613 N.E.2d 984).

Although defendant appeared briefly in the courtroom in jail clothing during jury selection, the record does not support the contention of defendant that he was prejudiced thereby (see, People v. Reid, 137 A.D.2d 844, 845, 525 N.Y.S.2d 307, lv. denied 71 N.Y.2d 901, 527 N.Y.S.2d 1010, 523 N.E.2d 318; cf., People v. Roman, 35 N.Y.2d 978, 979, 365 N.Y.S.2d 527, 324 N.E.2d 885). County Court stated on the record that there was "no sign" that defendant was dressed in jail clothing. The court described defendant as being dressed in a "clean, blue type sport shirt". Defense counsel did not contradict the court's description, nor is there any other evidence in the record that casts doubt on the court's description. Defendant's present reliance upon evidence outside the record to contradict the court's description is improper.

Defendant was afforded effective assistance of counsel (see, People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19; People v. Kroemer, 204 A.D.2d 1017, 613 N.Y.S.2d 304, lv. denied 84 N.Y.2d 828, 1012, 617 N.Y.S.2d 148, 622 N.Y.S.2d 924, 641 N.E.2d 169, 647 N.E.2d 130). None of the alleged deficiencies of counsel resulted in substantial prejudice to defendant (see, People v. Kroemer, supra, at 1018, 613 N.Y.S.2d 304). Reversal is not required as a result of prosecutorial misconduct. The prosecutor's comments on summation of which defendant complains constituted, for the most part, either fair comment on the evidence or fair response to defense contentions (see, People v. Howard, 195 A.D.2d 1082, 1083, 600 N.Y.S.2d 544, lv. denied 82 N.Y.2d 755, 603 N.Y.S.2d 997, 624 N.E.2d 183; People v. Maisonet, 172 A.D.2d 274, 568 N.Y.S.2d 96, lv. denied 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421). To the extent that some of the prosecutor's remarks were improper, they were not so egregious as to require reversal (see, People v. Plant, 138...