Opinion
04-12-2017
The PEOPLE, etc., respondent, v. Rudolph BISNAUTH, appellant.
Joseph Ferrante, Hauppauge, NY, for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Miller of counsel), for respondent.
Joseph Ferrante, Hauppauge, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Miller of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Appeals 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.
ORDERED that the judgment and the order are affirmed.
A grand 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[1], [2] ) 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, 950 N.Y.S.2d 177 ). 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) 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.
The 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[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). 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, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The 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, 794 N.Y.S.2d 55 ). These contentions are, for the most part, unpreserved for appellate review (see CPL 470.05[2] ). 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, 513 N.Y.S.2d 380, 505 N.E.2d 945 ; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ). 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, 872 N.Y.S.2d 364, 900 N.E.2d 915 ; People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883 ; People v. Howard, 120 A.D.3d 1259, 1260, 992 N.Y.S.2d 144 ).
The 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, 761 N.Y.S.2d 144, 791 N.E.2d 401 ; People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; Buttice v. Dyer, 1 A.D.3d 552, 552–553, 767 N.Y.S.2d 784 ). 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, 584 N.Y.S.2d 813 ; see CPL 60.22 ; People v. Heidt, 95 A.D.3d 1234, 1235, 945 N.Y.S.2d 164 ; People v. Cyrus, 18 A.D.3d 1020, 1022, 794 N.Y.S.2d 755 ; People v. Arnold, 298 A.D.2d 895, 895, 748 N.Y.S.2d 92 ).
The 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) 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 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286 ; People v. Benloss, 117 A.D.3d 1071, 986 N.Y.S.2d 625 ; People v. Graves, 62 A.D.3d 900, 901, 878 N.Y.S.2d 630 ; People v. Mauro, 236 A.D.2d 560, 654 N.Y.S.2d 384 ).