Opinion
December 31, 1998
Appeal from Judgment of Erie County Court, McCarthy, J. — Murder, 2nd Degree.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25) and other related crimes, defendant contends that County Court erred, in failing to conduct an inquiry to determine whether the jurors were influenced by news articles concerning defendant that were published during the trial. Defendant failed to object to the jury charge concerning those articles, however, and the issue therefore is not preserved for our review ( see, People v. Albert, 85 N.Y.2d 851, 852; People v. Santiago, 52 N.Y.2d 865, 866; see also, People v. James, 244 A.D.2d 504). The court properly denied defendant's motion for a mistrial because of remarks by a juror and a prosecution witness concerning the fact that defendant had a criminal history. The information was volunteered, and the remarks were not made in response to an inquiry by the prosecution ( see, People v. Holton, 225 A.D.2d 1021, lv denied 88 N.Y.2d 986; see also, People v. Ortiz, 216 A.D.2d 164, lv denied 86 N.Y.2d 799).
The court did not err in denying defendant's challenge for cause to a prospective juror who expressed reservations about missing work and a general negative sentiment regarding the criminal justice system but who also indicated that he would follow the court's instructions ( see, People v. Baskett, 250 A.D.2d 774). Upon our review of the voir dire transcript, we conclude that the prospective juror did not evince a state of mind that would likely preclude him from rendering an impartial verdict based upon the evidence adduced at trial ( see, CPL 270.20 [b]; People v. Torpey, 63 N.Y.2d 361, 366, rearg denied 64 N.Y.2d 885).
The court did not err in denying defendant's request to compel the prosecution to confer immunity on two potential defense witnesses. The refusal by the prosecution to confer immunity on those defense witnesses was not an abuse of discretion and did not deprive defendant of due process ( see, CPL 50.30; People v. Owens, 63 N.Y.2d 824, 825-826; People v. Adams, 53 N.Y.2d 241, 247). The prosecution's case "was supported by substantial proof connecting defendant to the crime and was not built upon the testimony of immunized witnesses" ( People v. Howard, 151 A.D.2d 990, 991, lv denied 75 N.Y.2d 771, citing People v. Adams, supra). The court did not err in denying defendant's request to charge the jury that the two potential defense witnesses had invoked their Fifth Amendment privilege in place of the neutral charge that the witnesses were unavailable to testify. The charge requested by defendant would invite the jury to engage in unwarranted speculation concerning the nature of any criminal wrongdoing on the part of those witnesses and was therefore improper ( see, People v. Thomas, 51 N.Y.2d 466, 473-474).
The contention of defendant that he should have been allowed to call the identifying witnesses at the Wade hearing is not preserved for our review ( see, People v. Ford, 188 A.D.2d 613, lv denied 81 N.Y.2d 885). In any event, the testimony of those witnesses was not required because "the hearing evidence [did not raise] substantial issues as to the constitutionality of the lineup" ( People v. Chipp, 75 N.Y.2d 327, 338, cert denied 498 U.S. 833). There was no showing that the police photograph of defendant, which was shown to the identifying witnesses and later published in a local newspaper, was the result of any police misconduct ( see, People v. Beaufort-Cutner, 190 A.D.2d 992, 994, lv denied 81 N.Y.2d 1011; People v. Brown, 159 A.D.2d 411, 412, lv denied 76 N.Y.2d 785).
The testimony concerning an incident that occurred prior to the shooting was admissible to establish defendant's motive for the shooting ( see, People v. Alvino, 71 N.Y.2d 233, 241-242) and "to complete the narrative of events to assist the jury in its comprehension of the crime" ( People v. Hamid, 209 A.D.2d 716, 717, lv denied 87 N.Y.2d 973; see, People v. Rodriguez, 255 A.D.2d 908). Defendant was not denied effective assistance of counsel. Defendant was advised that his attorney had a potential conflict of interest, and defendant knowingly and voluntarily chose to continue to be represented by him ( see, People v. Gomberg, 38 N.Y.2d 307, 313-314; People v. Miller, 187 A.D.2d 930, 931). The court did not err in allowing a witness who had not previously participated in a pretrial identification procedure to make an in-court identification of defendant ( see, People v. Merced, 137 A.D.2d 562, lv denied 71 N.Y.2d 971; People v. Simpson, 125 A.D.2d 347, 348, lv denied 69 N.Y.2d 886). Defendant was able to cross-examine that witness regarding the reliability of the identification ( see, People v. Morales, 228 A.D.2d 704, lv denied 88 N.Y.2d 1070).
The court properly refused to admit the hearsay statement of a witness to the crime. The statement concerning the shooting, which was largely exculpatory, was not contrary to the declarant's penal interest ( see, People v. Settles, 46 N.Y.2d 154, 167; People v. Raife, 250 A.D.2d 864). In addition, there was insufficient evidence of reliability and trustworthiness to warrant admission of the statement into evidence ( see, People v. Raife, supra; People v. Campbell, 197 A.D.2d 930, 931, lv denied 83 N.Y.2d 850).
The verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The evidence, which established that defendant fired shots at the victims, is legally sufficient to support the conviction of reckless endangerment in the first degree ( see, People v. Chrysler, 85 N.Y.2d 413, 415). Finally, defendant's sentence is neither unduly harsh nor severe.
Present — Green, J. P., Wisner, Hayes, Balio and Fallon, JJ.