People v. Williams

• Decision Date: 06 July 2018
• Docket Number: KA 15–02121,604
• Parties: The PEOPLE of the State of New York, Respondent, v. Isiah WILLIAMS, Defendant–Appellant. (Appeal No. 3.)
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1422
80 N.Y.S.3d 610

The PEOPLE of the State of New York, Respondent,
v.
Isiah WILLIAMS, Defendant–Appellant. (Appeal No. 3.)

604
KA 15–02121

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

Entered: July 6, 2018

80 N.Y.S.3d 612

ISIAH WILLIAMS, DEFENDANT–APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court, Monroe County (Frederick G. Reed, A.J.), rendered December 4, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of a forged instrument in the second degree (two counts), and scheme to defraud in the second degree.

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 two counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ) and one count of scheme to defraud in the second degree (§ 190.60). We reject the contention of defendant that he was denied a fair trial when Supreme Court allowed the People to present testimony regarding the facts underlying count seven of the indictment, which was previously dismissed by this Court (

80 N.Y.S.3d 613

People v. Williams, 101 A.D.3d 1734, 1734, 955 N.Y.S.2d 907 [4th Dept. 2012] ). That testimony was relevant to the crimes charged in counts 5 and 15 of the indictment and was therefore properly admitted at trial (see generally People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 371 N.E.2d 456 [1977], cert denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88 [1978], rearg dismissed 61 N.Y.2d 670, 472 N.Y.S.2d 1028, 460 N.E.2d 232 [1983] ; Jerome Prince, Richardson on Evidence § 4–101 at 136 [Farrell 11th ed 1995] ).

By failing to object to the court's jury instruction, defendant failed to preserve for our review his contention that he was deprived of a fair trial by that instruction (see CPL 470.05[2] ; see also People v. Green, 35 A.D.3d 1211, 1212, 825 N.Y.S.2d 891 [4th Dept. 2006], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ), and 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] ).

We reject defendant's further contention that the grand jury proceeding was defective, requiring dismissal of the indictment (see CPL 210.35[5] ). Although one of the witnesses provided false testimony at the grand jury proceeding relating to count four of the indictment, that count was properly dismissed. Further, "[t]here is no indication that the People knowingly or deliberately presented false testimony before the Grand Jury, and thus there is no basis for finding that the integrity of the Grand Jury proceeding was impaired or [that] the [remaining counts of the] indictment [were] rendered defective by the alleged false testimony" ( People v. Klosin, 281 A.D.2d 951, 951, 725 N.Y.S.2d 478 [4th Dept. 2001], lv denied 96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121 [2001] ; see generally People v. Huston, 88 N.Y.2d 400, 406–407, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ; People v. Miller, 110 A.D.3d 1150, 1150–1151, 973 N.Y.S.2d 420 [3d Dept. 2013] ).

Contrary to defendant's contention, the court did not err in denying his request for a missing witness charge. "A request for a missing witness charge is properly denied where, as here, the party requesting the charge does not establish that the witness could have been expected to testify concerning a material issue" ( People v. Williams, 13 A.D.3d 1173, 1174, 787 N.Y.S.2d 770 [4th Dept. 2004], lv denied 4 NY3d 892, 798 N.Y.S.2d 737, 831 N.E.2d 982 [2005], reconsideration denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ; see People v. Morris, 159 A.D.2d 934, 934, 552 N.Y.S.2d 803 [4th Dept. 1990], lv denied 76 N.Y.2d 793, 559 N.Y.S.2d 998, 559 N.E.2d 692 [1990] ).

Defendant failed to object to all but one of the allegedly improper remarks made by the prosecutor during opening and closing statements, and thus failed to preserve for our review his contention that he was denied a fair trial by those instances of alleged prosecutorial misconduct (see CPL 470.05[2] ; People v. Simmons, 133 A.D.3d 1275, 1277, 20 N.Y.S.3d 787 [4th Dept. 2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ). In any event, defendant's contention is without merit inasmuch as all of the challenged remarks were either a fair comment on the evidence or a fair response to defendant's summation (see Simmons, 133 A.D.3d at 1277–1278, 20 N.Y.S.3d 787 ; see People v. Kelly, 34 A.D.3d 1341, 1342, 825 N.Y.S.2d 855 [4th Dept. 2006], lv denied 8 N.Y.3d 847, 830 N.Y.S.2d 706, 862 N.E.2d 798 [2007] ). Contrary to defendant's further contention, defense counsel's failure to object to the prosecutor's comments did not deprive defendant of effective assistance...