Opinion
2014-04-16
The PEOPLE, etc., respondent, v. Doran EVANS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered May 10, 2007, convicting him of murder in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
A witness's out-of-court statements may be admitted as part of the People's direct case where the People “demonstrate by clear and convincing evidence that the defendant, by violence, threats or chicanery, caused [the] witness's unavailability” ( People v. Cotto, 92 N.Y.2d 68, 75–76, 677 N.Y.S.2d 35, 699 N.E.2d 394;see People v. Leggett, 107 A.D.3d 741, 741–742, 966 N.Y.S.2d 219). “Recognizing the surreptitious nature of witness tampering and that a defendant engaging in such conduct will rarely do so openly, resorting instead to subterfuge, the court can rely on and the prosecution can use circumstantial evidence in making the requisite determination” ( People v. Encarnacion, 87 A.D.3d 81, 87, 926 N.Y.S.2d 446;see People v. Leggett, 107 A.D.3d at 742, 966 N.Y.S.2d 219). Contrary to the defendant's contention, the Supreme Court correctly admitted the grand jury testimony of an unavailable witness. The People established, by clear and convincing evidence, that the witness had been rendered unavailable due to threats made at the defendant's initiative or acquiescence ( see People v. Geraci, 85 N.Y.2d 359, 370, 625 N.Y.S.2d 469, 649 N.E.2d 817;People v. Tatum, 35 A.D.3d 511, 824 N.Y.S.2d 718).
Further, the Supreme Court providently exercised its discretion in denying the defendant'smotion to reopen the suppression hearing, since the defendant failed to show that the alleged new facts proffered by him would have affected the court's ultimate determination of the issue of probable cause ( see CPL 710.40[4]; People v. Jackson, 97 A.D.3d 693, 694, 947 N.Y.S.2d 613).
The defendant's challenges to certain remarks made by the prosecutor during summation are unpreserved for appellate review, as the defendant “ ‘failed to object to the challenged remarks, registered one-word general objections, or, when an objection was sustained, failed to request further instructions or [timely] move for a mistrial’ ” ( People v. Mullings, 83 A.D.3d 871, 872, 921 N.Y.S.2d 152, quoting People v. Gill, 54 A.D.3d 965, 966, 864 N.Y.S.2d 135;seeCPL 470.05[2] ). In any event, the challenged remarks either constituted fair comment on the evidence ( see People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668;People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), were responsive to arguments and theories presented in the defense's summation ( see People v. Herb, 110 A.D.3d at 831, 972 N.Y.S.2d 668;People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), were permissible rhetorical comment ( see People v. Ashwal, 39 N.Y.2d at 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564), or constituted harmless error ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Contrary to the defendant's contention, the Supreme Court did not deprive him of his Sixth Amendment right to represent himself. The defendant's initial request to proceed pro se was not unequivocal but was made in the context of expressing dissatisfaction with assigned counsel, and thus, “did not ‘reflect an affirmative desire for self-representation’ ” ( People v. Jackson, 97 A.D.3d at 694, 947 N.Y.S.2d 613, quoting Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 387, 929 N.Y.S.2d 535, 953 N.E.2d 773;People v. Scivolette, 40 A.D.3d 887, 887–888, 836 N.Y.S.2d 262).
The defendant was not deprived of the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).
The defendant's remaining contentions are without merit. RIVERA, J.P., LOTT, MILLER and HINDS–RADIX, JJ., concur.