Opinion
2012-02-14
The PEOPLE, etc., Respondent, v. James WALL, Appellant.
Langone & Associates, PLLC, Hempstead, N.Y. (Richard M. Langone of counsel; Robert P. Schwartz on the brief), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Langone & Associates, PLLC, Hempstead, N.Y. (Richard M. Langone of counsel; Robert P. Schwartz on the brief), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (R. Doyle, J.), rendered December 13, 2009, convicting him of murder in the second degree (two counts), kidnapping in the first degree (two counts), and kidnapping in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt of two counts of murder in the second degree is unpreserved for appellate review since he did not raise in the Supreme Court the specific ground that he now raises on appeal ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Burgess, 75 A.D.3d 650, 904 N.Y.S.2d 673). In any event, the contention is without merit. Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of two counts of murder in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to murder in the second degree, kidnapping in the first degree, and kidnapping in the second degree 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's contention that he was entitled to a charge on circumstantial evidence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Capehart, 61 A.D.3d 885, 886, 877 N.Y.S.2d 211) and, in any event, is without merit. Where proof of all elements of a charge is based wholly on circumstantial evidence, the jury should be given a circumstantial evidence charge ( see People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014; People v. Johnson, 293 A.D.2d 489, 739 N.Y.S.2d 636). However, where a charge is supported with both circumstantial and direct evidence, the trial court need not so instruct the jury ( see People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014; People v. Washington, 45 A.D.3d 880, 847 N.Y.S.2d 113; People v. Johnson, 293 A.D.2d 489, 739 N.Y.S.2d 636). Here, there was direct evidence of the defendant's guilt provided by the testimony of the surviving kidnapping victim and the codefendant.
The defendant was, as a matter of fundamental fairness, entitled to a copy of a prior statement of a witness who testified on his behalf at trial, as the prosecutor used that prior statement to impeach the witness during cross-examination ( see People v. Barbera, 220 A.D.2d 601, 602, 632 N.Y.S.2d 821; People v. Gladden, 72 A.D.2d 568, 569, 420 N.Y.S.2d 739). Under the circumstances of this case, however, the error does not require reversal ( see People v. Barbera, 220 A.D.2d at 602, 632 N.Y.S.2d 821; People v. Gladden, 72 A.D.2d at 569, 420 N.Y.S.2d 739; cf. People v. Delosanto, 307 A.D.2d 298, 763 N.Y.S.2d 629).
The defendant's contention that the counts of murder in the second degree and kidnapping in the first degree were multiplicitous is unpreserved for appellate review ( see CPL 470.05[2]; People v. Clymer, 26 A.D.3d 443, 809 N.Y.S.2d 207) and, in any event, without merit ( see People v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 85–86, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.