People v. Vernon
| Citation | 25 N.Y.S.3d 755,136 A.D.3d 1276 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Andre VERNON, Defendant–Appellant. (Appeal No. 1.). |
| Decision Date | 05 February 2016 |
| Court | New York Supreme Court Appellate Division |
136 A.D.3d 1276
25 N.Y.S.3d 755
The PEOPLE of the State of New York, Respondent,
v.
Andre VERNON, Defendant–Appellant. (Appeal No. 1.).
Supreme Court, Appellate Division, Fourth Department, New York.
Feb. 5, 2016.
Michael L. D'Amico, Buffalo, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and SCUDDER, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25[1] ) and attempted murder in the second degree (§§ 110.00, 125.25[1] ), in connection with the shooting of two men who were brothers. The surviving victim testified that he and his brother were arguing with defendant on the street. During the argument, defendant's uncle pulled up to the curb near defendant in his vehicle, a large dark SUV, and joined the argument. The victim ran when defendant pulled a gun from his sweatshirt pocket, and the victim heard two gunshots, the second of which struck him in the back. An eyewitness, who was in his vehicle parked on the street, told the police that he heard two shots and saw the SUV back up briefly and "possibly shoot again" before driving off. The eyewitness was deceased at the time of the trial, and his statement was introduced through the testimony of a police detective following defendant's objection that the People had violated their Brady obligation by failing to turn over the statement to defendant before trial. According to defendant, the statement of the eyewitness is exculpatory because it implicates his uncle as the shooter. Even assuming, arguendo, that the statement of the eyewitness constitutes Brady material, we reject defendant's contention that the failure to turn over the statement prior to trial denied him due process and thus that reversal is required. "Defendant received the remedy he requested after the People disclosed the [contents of the statement] and he had a reasonable opportunity to use it as part of his defense" (People v. Sanchez, 21 N.Y.3d 216, 225, 969 N.Y.S.2d 840, 991 N.E.2d 698 ; see People v. Goodell, 164 A.D.2d 321, 327, 565 N.Y.S.2d 929, affd. 79 N.Y.2d 869, 581 N.Y.S.2d 157, 589 N.E.2d 380 ; People v. Daniels, 115 A.D.3d 1364, 1365, 982 N.Y.S.2d 689, lv. denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 ).
We reject defendant's further contention that Supreme Court erred in determining, following a Sirois hearing, that defendant knowingly consented to threats that were made against a witness in the event she appeared to testify for the prosecution,
and thus erred in permitting the prosecution to use the grand jury testimony of that witness in their direct case. The witness, who lived in Georgia, testified before the grand jury that defendant contacted her after the shooting and admitted that he shot two people, killing one of them, and requested that she permit him to stay with her. The witness did not appear at trial pursuant to the subpoena served on her. The prosecutor testified at the Sirois hearing that he provided defense counsel with the name of the witness on the first day of trial. He also testified regarding his conversations with the witness following the first day of trial, wherein she related the
contents of threatening voicemail messages that she had received. One message was from defendant's sister, another was from an unknown male, and additional threatening messages were relayed to her by her mother, who is married to another uncle of defendant's. Telephone records admitted in evidence showed 17 calls from numbers with a Buffalo area code made to the witness's phone on the first day of trial, one of which was identified as belonging to defendant's sister. The People also presented the recorded telephone conversations between defendant and an unidentified female on the evening of the first day of trial, wherein the female stated, inter alia, that "her husband is getting back from Iraq"; "all that you asked has already been done"; and "we are trying to go contact the girl." Defense counsel testified at the Sirois hearing that the witness called him and said that her testimony before the grand...
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