Ferrante, Hauppauge, NY, for appellant.
J. Spota, District Attorney, Riverhead, NY (Michael J. Miller
of counsel), for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI HECTOR D.
DECISION & ORDER
by the defendant (1) from a judgment of the County Court,
Suffolk County (Doyle, J.), rendered March 15, 2011,
convicting him of murder in the second degree, upon a jury
verdict, and imposing sentence, and (2), by permission, from
an order of the Supreme Court, Suffolk County (Cohen, J.),
dated April 23, 2015, which, after a hearing, denied his
motion pursuant to CPL 440.10 to vacate the judgment rendered
March 15, 2011.
that the judgment and the order are affirmed.
jury indicted the defendant and Michael McKenzie for acting
in concert to commit murder in the second degree (two counts:
intentional and depraved indifference; Penal Law §§
125.25, ) in connection with the shooting death of
Jeremiah Armstrong outside of a residence in Wyandanch on the
evening of June 1, 2009. McKenzie subsequently pleaded guilty
to manslaughter in the first degree in satisfaction of the
indictment insofar as against him (see People v
McKenzie, 98 A.D.3d 749). A jury found the defendant
guilty of depraved indifference murder. Thereafter, the
defendant moved pursuant to CPL 440.10 to vacate the judgment
on the ground that the prosecution committed a Brady
violation (Brady v Maryland, 373 U.S. 83) by failing
to disclose, prior to trial, that a key witness for the
prosecution had been a police informant. After a hearing, the
Supreme Court denied the motion.
defendant contends that the jury verdict was against the
weight of the evidence. In fulfilling our responsibility to
conduct an independent review of the weight of the evidence
(see CPL 470.15; People v Danielson, 9
N.Y.3d 342), we nevertheless accord great deference to the
factfinder's opportunity to view the witnesses, hear the
testimony, and observe demeanor (see People v Mateo,
2 N.Y.3d 383; People v Bleakley, 69 N.Y.2d 490).
Upon reviewing the record here, we are satisfied that the
verdict of guilt was not against the weight of the evidence
(see People v Romero, 7 N.Y.3d 633).
defendant ascribes error to the prosecutor's introduction
into evidence of prior statements to impeach two prosecution
witnesses, the failure of the trial court to give limiting
instructions at the time the impeachment material was
introduced pursuant to CPL 60.35, and the prosecutor's
reference to the prior statements during summation (see
People v Solomon, 16 A.D.3d 701, 702). These contentions
are, for the most part, unpreserved for appellate review
(see CPL 470.05). In any event, to the extent
these contentions have merit, we find any error harmless, as
the evidence of the defendant's guilt was overwhelming
and there was no significant probability that the error
contributed to the defendant's conviction (see People
v Saez, 69 N.Y.2d 802, 804; People v Crimmins,
36 N.Y.2d 230). Contrary to the defendant's alternative
contention, he was not deprived of the effective assistance
of counsel by his attorney's failure to preserve some of
these claims during trial (see People v Ennis, 11
N.Y.3d 403, 415; People v Stultz, 2 N.Y.3d 277, 287;
People v Howard, 120 A.D.3d 1259, 1260).
trial court properly denied the defendant's request for a
missing witness charge, as the defendant failed to meet his
burden of establishing that the witness in question, the
codefendant, would normally be expected to give noncumulative
testimony favorable to the People (see generally People v
Savinon, 100 N.Y.2d 192, 196; People v
Gonzalez, 68 N.Y.2d 424, 427; Buttice v Dyer, 1
A.D.3d 552, 552-553). Indeed, the testimony of a codefendant
who has pleaded guilty is "presumptively suspect, "
and a prosecutor would not normally be expected to call such
a witness at trial (People v Rios, 184 A.D.2d 244,
245; see CPL 60.22; People v Heidt, 95
A.D.3d 1234, 1235; People v Cyrus, 18 A.D.3d 1020,
1022; People v Arnold, 298 A.D.2d 895, 895).
Supreme Court properly denied, after a hearing, the
defendant's motion pursuant to CPL 440.10 to vacate the
judgment on the ground that the prosecution committed a
Brady violation (see Brady v Maryland, 373
U.S. 83) by failing to disclose that a witness had been a
police informant. There was no reasonable possibility that
such nondisclosure affected the outcome of the trial (see
People v Fuentes,12 N.Y.3d ...