Opinion
2012-03-16
The PEOPLE of the State of New York, Respondent, v. John TOLLIVER, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. John Tolliver, Defendant–Appellant Pro Se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. John Tolliver, Defendant–Appellant Pro Se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). We reject the contention of defendant in his main and pro se supplemental briefs that he was denied a fair trial based on the use of his nicknames “Crim” and “Criminal” in the indictment. Supreme Court properly instructed the jury that the indictment contained “simply ... accusation[s]” and “was not in any way evidence” of those accusations ( see People v. Johnson, 253 A.D.2d 702, 703–704, 679 N.Y.S.2d 361, lv. denied 92 N.Y.2d 1031, 1034, 684 N.Y.S.2d 496, 499, 707 N.E.2d 451, 454). In addition, inasmuch as several of the People's witnesses knew defendant only by his nicknames, it was permissible for the People to elicit testimony regarding those nicknames at trial for identification purposes ( see People v. Hoffler, 41 A.D.3d 891, 892, 837 N.Y.S.2d 750, lv. denied 9 N.Y.3d 962, 963, 848 N.Y.S.2d 30, 878 N.E.2d 614; People v. Caver, 302 A.D.2d 604, 758 N.Y.S.2d 335, lv. denied 99 N.Y.2d 652, 653, 760 N.Y.S.2d 117, 790 N.E.2d 291). Indeed, the court instructed the jury that the evidence concerning defendant's nicknames was “competent for one particular purpose only: [e]stablishing the identity of the [d]efendant.” Defendant's further contention in his main and pro se supplemental briefs that the prosecutor's use of the nicknames during summation constituted misconduct is not preserved for our review ( see Caver, 302 A.D.2d 604, 758 N.Y.S.2d 335). In any event, any error with respect to the prosecutor's use of the nicknames is harmless inasmuch as the evidence of defendant's guilt was overwhelming and there was no significant probability that defendant would have been acquitted but for the alleged error, especially in light of the court's instruction to the jury ( see id.; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). We reject defendant's contention in his main and pro se supplemental briefs that defense counsel was ineffective in failing to object to comments made by the prosecutor during summation ( see People v. Lyon, 77 A.D.3d 1338, 1339, 908 N.Y.S.2d 291, lv. denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324).
Defendant's challenge to the legal sufficiency of the evidence corroborating the testimony of his accomplice, raised in his main and pro se supplemental briefs, is unpreserved for our review because he did not raise the issue of accomplice corroboration in his general motion for a trial order of dismissal ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, defendant's challenge is without merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's contention in his main brief that he was denied effective assistance of counsel based on the failure of defense counsel to move for a trial order of dismissal on that ground ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). “Defendant has not shown that [such a] motion, if made, would have been successful and thus has failed to establish that defense counsel was ineffective in failing to make such a motion” ( People v. Borcyk, 60 A.D.3d 1489, 1490, 876 N.Y.S.2d 287, lv. denied 12 N.Y.3d 923, 884 N.Y.S.2d 704, 912 N.E.2d 1085). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we accord great deference to the jury's resolution of credibility issues and conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve for our review his further contention in his main brief that the ruling constitutes an abuse of discretion ( see People v. Brown, 39 A.D.3d 1207, 834 N.Y.S.2d 766, lv. denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895; People v. Alston, 27 A.D.3d 1141, 811 N.Y.S.2d 251, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674). In any event, the court's Sandoval ruling did not constitute a “ ‘clear abuse of discretion’ ” warranting reversal ( People v. Nichols, 302 A.D.2d 953, 953, 755 N.Y.S.2d 545, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 121, 790 N.E.2d 295; see People v. Reid, 34 A.D.3d 1273, 825 N.Y.S.2d 619, lv. denied 8 N.Y.3d 884, 832 N.Y.S.2d 496, 864 N.E.2d 626). The prior convictions in question were relevant to the credibility of defendant ( see People v. Marquez, 22 A.D.3d 388, 391, 802 N.Y.S.2d 665, lv. denied 6 N.Y.3d 778, 811 N.Y.S.2d 345, 844 N.E.2d 800). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.