Opinion
September 29, 1995
Appeal from the Erie County Court, LaMendola, J.
Present — Denman, P.J., Pine, Wesley, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of four counts of murder in the second degree, three counts of robbery in the first degree, two counts of criminal possession of a weapon in the third degree, grand larceny in the fourth degree and unauthorized use of a vehicle in the third degree.
Defendant failed to preserve for our review his contention that his conviction of grand larceny in the fourth degree and unauthorized use of a vehicle in the third degree is not supported by legally sufficient evidence (see, People v Lawrence, 85 N.Y.2d 1002; People v Gray, 86 N.Y.2d 10). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
There is no merit to the contention of defendant that he was denied his constitutional rights of confrontation and compulsory process by the trial court's refusal to permit a prosecution witness to be recalled, after the prosecution had rested, for further cross-examination. The determination whether to reopen a case for further testimony is addressed to the reasonable discretion of the trial court (see, People v Ventura, 35 N.Y.2d 654) and it cannot be said that, under the circumstances of this case, the trial court abused that discretion (see, People v Frieson, 103 A.D.2d 1009).
The 2 1/2 week delay in the trial due to the illness of the Trial Judge neither prejudiced defendant nor deprived him of a fair trial (see, People v Cooper, 173 A.D.2d 551, lv denied 78 N.Y.2d 921).
There is no merit to the contention of defendant that the court should have precluded the testimony of a prosecution witness regarding her conversation with defendant in the Erie County Hall. Contrary to the assertion of defendant, the record supports the court's decision, after a Cardona hearing (see, People v Cardona, 41 N.Y.2d 333), that the witness was not acting as an agent of the District Attorney's Office (see, People v Branshaw, 177 A.D.2d 1028, lv denied 79 N.Y.2d 918). Rather, the witness provided information regarding the conversation on her own initiative (see, People v Nicholas, 199 A.D.2d 425, lv denied 83 N.Y.2d 808; see also, People v Cardona, supra, at 335).
Defendant was not deprived of a fair trial by prosecutorial misconduct during summation (see, People v Hargrave, 210 A.D.2d 971, lv denied 85 N.Y.2d 938; People v Plant, 138 A.D.2d 968, lv denied 71 N.Y.2d 1031; cf., People v Mott, 94 A.D.2d 415, 419).
We decline to exercise our power to modify defendant's sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [b]). The imposition of consecutive sentences for the murders of the two victims, one of whom was a three-year-old child, was warranted.
Lastly, we have reviewed the remaining issues advanced by defendant and conclude that they are without merit.