APPEALS by the defendant from (1) a judgment of the Supreme Court (Raymond Guzman, J.), rendered May 21, 2007, in Kings County, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court imposed August 23, 2007.
The opinion of the court was delivered by: Fisher, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., THOMAS A. DICKERSON, RANDALL T. ENG & L. PRISCILLA HALL, JJ.
The principal issue presented on these appeals concerns whether the sanction of preclusion was properly imposed for the defendant's failure to serve alibi notice with respect to a witness whom the defendant intended to call for the purpose of contradicting a portion of the account of a central prosecution witness but whose testimony might also have been taken as circumstantial evidence that the defendant was not present at the scene of the crime at the time of its commission.
According to the prosecution's evidence at trial, on May 18, 2006, at approximately 5:40 P.M., Sergeant Sean McCarthy, together with Police Officers Michael Harvey and Jared Santangelo, were on motor patrol in Brooklyn when they pulled over a minivan that had failed to stop at a stop sign. Officer Harvey directed the driver, Lamont Adams, to step out of the van and, after frisking him for weapons, told him to walk to the back of the vehicle with Officer Santangelo. Sergeant McCarthy then asked the front seat passenger to get out of the van. In response, the passenger slowly took off his seat belt, but then "exploded out of his seat," shoving McCarthy and knocking him to the ground. From the other side of the vehicle, Officer Harvey saw the passenger reach back into the van and grab a gun from the passenger seat. The passenger tucked the gun under his shirt and fled. McCarthy and Harvey gave chase. In the course of the pursuit, the passenger discarded the gun and the pursuing officers recovered it, but they were unable to catch the passenger.
Adams, still in the custody of Officer Santangelo, was arrested and charged with criminal possession of a weapon. He named the defendant, Bashan Green, as the passenger, and the defendant was arrested several weeks later and indicted for criminal possession of a weapon in the third and fourth degrees. At trial, Sergeant McCarthy identified him as the passenger; Officer Harvey did not.
The People also called Adams, who testified that he and the defendant were employed at the same company. According to Adams, he clocked out of work on May 18, 2006, at 4:45 P.M., and the defendant asked him for a ride home. Adams testified that, although he lived in Queens, he agreed to drive the defendant home to the Bedford Stuyvesant section of Brooklyn. Adams brought his vehicle into the parking lot and the defendant climbed in, but Adams needed to complete some paperwork so he left the minivan's engine running and went back inside. Adams saw a fellow employee, Floyd Hardon, talking with the defendant, who remained seated in the minivan. Adams returned to the vehicle and drove with the defendant to Brooklyn where they were stopped by the police. Adams denied having run a stop sign, and claimed that he had been unaware of the presence of the gun in the vehicle.
The defense presented the testimony of Detective Gamalier Mendez, who had completed the "DD-5" police forms for the case. According to Mendez's paperwork, which was based on his interview of Officer Harvey, three people were in the minivan when the police stopped it, and two of them had pushed Sergeant McCarthy to the ground.
The jury convicted the defendant of criminal possession of a weapon in the third degree, and the court imposed sentence. The court resentenced the defendant some three months later in order to correct an error in the period of postrelease supervision. On the appeals from both the judgment and the resentence, the defendant contends, inter alia, that the trial court erred in precluding him from calling Floyd Hardon to testify as a defense witness at trial.
The record reflects that, a day or two before the trial began, defense counsel provided the People with a list of potential defense witnesses. Floyd Hardon's name appeared on the list. Before opening statements, the prosecutor, who had conducted a general investigation of the potential witnesses, said that he believed that the defense would use Hardon's testimony in an attempt to establish an alibi, and he questioned why he had not received alibi notice. Defense counsel responded that she had first learned of Floyd Hardon when reviewing a packet of discovery material received from the People two months prior to trial. According to counsel, the discovery material included Hardon's driver's license and "all of his information," leading her to conclude that the People and the police were well aware of the witness and his connection to the case.
Counsel argued further that, in any event, Hardon was not an alibi witness. She represented that he would testify that Adams and the defendant had gotten into an argument at work which led to a physical altercation. Hardon would testify further that, on the evening in question, Adams and the defendant were not speaking to ...