People v. Toussaint

• Decision Date: 01 June 2010
• Citation: 902 N.Y.S.2d 165,74 A.D.3d 846
• Parties: The PEOPLE, etc., respondent, v. Lesley TOUSSAINT, appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 165 74 A.D.3d 846 The PEOPLE, etc., respondent, v. Lesley TOUSSAINT, appellant. Supreme Court, Appellate Division, Second Department, New York. June 1, 2010.

Steven Flaumenhaft, West Sayville, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

MARK C. DILLON, J.P., FRED T. SANTUCCI, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered June 27, 2002, convicting him of murder in the first degree (three counts), murder in the second degree (two counts), robbery in the first degree (two counts), robbery in the second degree (three counts), and arson in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In order for a statement to be admissible under the exception to the hearsay rule for declarations against penal interest, a four-part test must be satisfied: (1) the declarant must be unavailable to testify at the defendant's trial, (2) the declarant must have competent knowledge of the facts, (3) the declarant must have known at the time the statement was made that it was against his or her penal interest, and (4), most important, there must be independent supporting proof indicating that the statement is trustworthy and reliable ( see People v. Ennis, 11 N.Y.3d 403, 412-413, 872 N.Y.S.2d 364, 900 N.E.2d 915, cert. denied, --- U.S. ----, 129 S.Ct. 2383, 173 L.Ed.2d 1301; People v. Brensic, 70 N.Y.2d 9, 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226; People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612; People v. Singh, 47 A.D.3d 733, 734, 849 N.Y.S.2d 606, cert. denied, --- U.S. ----, 129 S.Ct. 570, 172 L.Ed.2d 429). Here, the trial court properly declined to admit two statements by a codefendant offered by the defendant. The defendant failed to establish that the declarant was unavailable to testify at his trial, and there was no independent supporting proof indicating that the statements were trustworthy and reliable. The declarant specifically repudiated one of the statements at his plea allocution in open court. Moreover, the other statement was not shown to be against the declarant's penal interest, as it was largely exculpatory ( see People v. Singh, 47 A.D.3d at 734, 849 N.Y.S.2d 606).

The defendant's contention that the trial court should havequestioned a discharged prospective juror whose name was on the "crime scene log" on the day of the incident is based on speculation and is without merit ( see People v. Diaz, 289 A.D.2d 184, 185, 735 N.Y.S.2d 517). Moreover, the trial court's marshaling of possible corroborating evidence in its charge on accomplice corroboration did not create an imbalance which prejudiced the defendant or placed undue emphasis on the People's contentions. The trial court's marshaling of the possible corroborating evidence served to explain the application of the law to the facts ( see People v. Fuentes, 52 A.D.3d 1297, 1299, 859 N.Y.S.2d 841; People v. Adams, 278 A.D.2d 920, 922, 719 N.Y.S.2d 428). Moreover, viewing the language of the accomplice corroboration charge as a whole, the instruction was proper ( see 1 CJI [NY] 7.52, at 337-339; People v. Glasper, 52 N.Y.2d 970, 971, 438 N.Y.S.2d 282, 420 N.E.2d 80; People v. Lawson, 40 A.D.3d 657, 658, 835 N.Y.S.2d 415; People v. Pedro, 36 A.D.3d 832, 833, 829 N.Y.S.2d 565; People v. Konigsberg, 137 A.D.2d 142, 147, 529 N.Y.S.2d 195).

The trial court did not improvidently exercise its discretion in permitting the accomplice witness to be called out of turn, or in denying the defense counsel's request for an adjournment prior to the completion of the cross-examination of that witness ( see People v. Singleton, 41 N.Y.2d 402, 405, 393 N.Y.S.2d 353, 361 N.E.2d 1003;People v. Olsen, 34 N.Y.2d 349, 353, 357 N.Y.S.2d 487, 313 N.E.2d 782; People v. Duplessis, 16 A.D.3d 846, 847, 791 N.Y.S.2d 214; People v. Braxton, 254 A.D.2d 365, 366, 681 N.Y.S.2d 544).

The defendant was afforded the effective assistance of trial counsel ( see People v. Ennis, 11 N.Y.3d 403, 872 N.Y.S.2d 364, 900 N.E.2d 915; People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The trial court's rulings, its questioning of witnesses during direct and cross-examination, and its occasional admonitions to the defendant's trial counsel did not exhibit bias. While some of the trial court's comments might have been better left unsaid, they do not warrant reversal ( see People v. Moulton, 43 N.Y.2d 944,...