The People, Respondent,v.Ronnell Jordan, Appellant.BriefN.Y.February 9, 2016SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONELL JORDAN, Defendant-Appellant. LEONARD JOBLOVE AMY APPELBAUM RESPONDENT'S BRIEF Assistant District Attorneys of Counsel JOSHUA S. LEVY Assistant District Attorney of Counsel Associate Sullivan & Cromwell, LLP September 30, 2014 To be argued by: JOSHUA S. LEVY ( 10 Minutes) Appellate Division Docket Number 2012-10762 King County Indictment Number 8020/11 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PRELIMINARY STATEMENT .......................................... 1 STATEMENT OF FACTS ............................................. 2 INTRODUCTION ............................................. 2 JURY SELECTION ........................................... 3 THE TRIAL ................................... :. . . . . . . . . . . . 4 THE PEOPLE 1 S CASE ................................... 4 THE DEFENSE CASE .................................... 7 THE PEOPLE 1 S REBUTTAL CASE .......................... 8 THE VERDICT AND THE SENTENCE ............................ 12 POINT I THE TRIAL COURT PROPERLY EXERCISED ITS . DISCRETION TO PERMIT THE PEOPLE TO IMPEACH THE DEFENSE WITNESS WITH PRIOR OMISSIONS ....... 13 POINT II THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO PERMIT THE VICTIM'S TESTIMONY CONCERNING THE DEFENSE WITNESS' BRIBERY ATTEMPT . . ...................................... 19 POINT III DEFENDANT'S CLAIM CONCERNING THE EXCUSAL OF CERTAIN PROSPECTIVE JURORS FOR HARDSHIP IS UNPRESERVED AND MERITLESS ..................... 244 POINT IV DEFENDANT'S SENTENCE WAS NEITHER HARSH NOR EXCESSIVE ...................................... 29 CONCLUSION .................................................... 31 CERIFICATE OF COMPLIANCE SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONELL JORDAN, Defendant-Appellant. RESPONDENT'S BRIEF Appellate Division Docket Number 2012-10762 Kings County Indictment Number 8020/11 PRELIMINARY STATEMENT Defendant Ronell Jordan appeals from a judgment of the Supreme Court, Kings County, entered November 7, 2012, convicting him, after a jury trial, of one count of Attempted Assault in the First Degree (P.L. §§ 110.00/120.10[1]), one count of Criminal Possession of a Weapon in the Second Degree ( P. L. § 2 65. 0 3 [ 1] ) , and one count of Attempted Robbery in the First Degree ( p. L. §§ 110.00/160.15 [2]). Defendant was sentenced to concurrent prisons terms of fourteen years, plus five years of post-release supervision, on all counts (Goldberg, J., at trial and sentence). Defendant is incarcerated pursuant to this judgment. There were no co-defendants. STATEMENT OF FACTS Introduction On June 7, 2011, at about 1:12 a.m., in Apartment 4-A at Sterling Place in Brooklyn, defendant Ronell Jordan demanded Elijah Austin's money, and then shot him in the chest, four inches below his heart. The bullet cut through Austin's stomach, small intestine, pancreas, and liver before it lodged in his spine, where it remains to this day. this gunshot wound but lives in constant pain. Austin survived For these crimes, defendant was charged, by Kings County Indictment Number 8020/11, with Attempted Murder in the Second Degree (P.L. §§ 110.00/125.25[1]); Attempted Assault in the First Degree (P.L. §§ 110.00/120.10[1]); Attempted Robbery in the First, Second, and Third Degrees (P.L. §§ 110.00/160.15[2], P.L. §§ 110.00/160.10[2] [a], P.L. §§ 110.00/160.05); Assault in the Second and Third Degrees (P.L. § 120.05[2]), § 120.00[1]); and Criminal Possession of a Weapon in the Second Degree and Fourth Degrees (P.L. § 265.03[1] [b], P.L. § 265.03[3], P.L. § 265.01[1]). 2 Jury Selection1 On October 25, 2012, towards the beginning of voir dire, the court told the panel of prospective jurors that while "it's a sacrifice for all of you to be here," "for some of you, this may be a hardship" due to, for example, "a family obligation, a business commitment, surgery scheduled, [or] a ticket to go someplace" (VD 11) . 2 The court explained that anyone it excused for hardship would not be excused from jury duty; rather, the clerk would either assign that juror to another trial, or send the juror home without credit for jury duty (VD 11-12). The court then asked: [I]f you think you will have a hardship being here for the amount of time that I said this trial is going to take, if you think you have a hardship, would you raise your hand? Anybody thinks they can't be here? right. they have a hardship That's great. All 1 Following a pretrial Wade hearing, the court denied defendant's motion to suppress the victim's in-court identification of defendant but granted defendant's motion to suppress a lineup identification. Because defendant does not challenge the hearing court's rulings on appeal, the evidence introduced at the hearing is not summarized here. 2 Numbers in parentheses preceded by the letters "VD" refer to the pages of the transcript of the voir dire proceedings. Unprefixed numbers in parenthesis refer to pages of the trial transcript. Names refer to witnesses whose testimony is recounted. 3 You have a hardship? Raise your hand. Do you have a hardship, step in [the] center aisle, the clerk will speak to you outside. (VD 12-13). The court excused those potential jurors who indicated that they had a hardship, and defendant did not raise any objection (VD 11-13). The Trial The People's Case On June 6, 2011, at about 9:00 p.m., ELIJAH AUSTIN was drinking cognac and smoking marijuana with his girlfriend (Austin: 77, 113-16). He then met with Bolade Aderogba, also known as "Black," and defendant Ronell Jordan, also known as "Rah," among others, to celebrate Aderogba' s birthday (Austin: 77-80, 88-89). Austin knew Aderogba for years and knew defendant because they lived in the same building, while Aderogba and defendant were close family friends (Austin: 8 0, 85-86, 106-10, 118-19). The group first attempted to go to a party on Park Place in Brooklyn but could not get in (Austin: 78, 116). At about 11:00 p.m., they went to a party at Sterling Place in Brooklyn (Austin: 80, 82). Austin only drank water at this party and felt "coherent" (Austin: 83, 87-88). He began to play dice with defendant and another person, but, during the game, Austin discovered that defendant had no money to make change, so he stopped playing (Austin: 83-84, 89-90, 116-17, 120-22, 124-26). 4 After leaving the dice game, Austin went to the kitchen to say his goodbyes and then ran into defendant in the hallway near the exit (Austin: 91-92). Defendant grabbed Austin by the shirt, pulled a gun, and told Austin to drop his money on the floor. Austin asked defendant if he was serious, prompting defendant to cock the hammer of his gun. Austin then dropped a few bills on the ground. As Austin was bending down to pick up the bills, defendant jumped backwards and shot Austin in the chest from two feet away (Austin: 92-95). After shooting Austin, defendant fled the scene before anyone came into the hallway (Austin: 96, 117-18). Aderogba then carried Austin downstairs to the front of the building (Austin: 96, 118). On June 7, 2011, at about 1:12 a.m., Police Officer NICHOLAS ALTIZER-MERCADO arrived at Sterling Place with his partner in response to a radio call for a male shot. Officer Altizer-Mercado found Austin "laying on the floor, clutching his stomach, and another male holding him, as if cradling him" (Altizer-Mercado: 56-57). The officers called for an ambulance and backup, and secured the crime scene. They learned that the person holding the victim was Aderogba, but he "[r]eally didn't want to cooperate" and "immediately left the crime scene" (Altizer-Mercado: 58-60, 64-65). 5 Although Austin "was complaining about being shot and that he was in pain," they "managed to get his name" and then put him inside an ambulance (Altizer-Mercado: 60-61). Detective CARL HAYMER, the lead investigator, arrived at about 1:15 a.m. and began to collect evidence with other detectives (Haymer: 137-30; 210) . Police Officer JAMES SAMUELS, who arrived on the scene as backup, rode in the ambulance with Austin and found him "incoherent" and "in pain" (Samuels: 72-73). The ambulance brought Austin to Brookdale Hospital (Samuels: 73; Austin: 97). At about 1:30 a.m., Dr. JONATHAN LANDON treated Austin at Brookdale Hospital. He diagnosed Austin "with an obvious gunshot wound" "[r]oughly four inches below the heart" with signs that he was bleeding internally (Landon: 214, 218). Dr. Landon then brought Austin to the hospital operating room where he discovered "bullet holes in the stomach," "a small hole in the duodenum," "a large laceration, a cut, to the pancreas as well as the liver," and the bullet itself lodged in "the middle of the back" (Landon: 215-16). After the surgery, Austin was under sedation and brought to the recovery room, which is inaccessible to outside visitors because it is locked with a keypad (Landon: 217-18). Austin remained at Brookdale Hospital for two weeks. He still suffered back pain from the shooting at the time of the trial, more than a year later (Austin: 97, 210). 6 On June 8, 2011, the day after the shooting, Detective Raymer spoke to Austin while Austin was recovering in the hospital. Austin told Raymer that he knew who shot him at Sterling Place, and that the shooter lived at Eastern Parkway (Austin: 104; Raymer: 140-42, 146-48). Detective Raymer also attempted to speak to Aderogba on the phone, but Aderogba refused to talk and hung up on him (Raymer: 144). Based on the information Austin provided, Detective RICHARD FARRINA arrested defendant on September 14, 2011 ( Farrina: 33- 40; Raymer: 142-43) . 3 The Defense Case4 Defendant called BOLADE ADEROGBA, his close family friend (Aderogba: 159, 170-71). Aderogba testified that, on June 6, 2 011, he celebrated his birthday with Austin and defendant by going to apartments "around the neighborhood" (Aderogba: 161- 62) . He claimed that although Austin and defendant were together at Park Place earlier in the night, defendant was not present at Sterling Place (Aderogba: 163, 165, 181-82). 3 At trial, Austin acknowledged that he was arrested on February 17, 2009 for possession of a gravity knife; October 6, 2009 for jumping a turnstile; and May 21, 2011 for riding in a car with a stolen license plate and possession of marijuana. He was not convicted of any of these offenses (Austin: 75-77). 4 Due to severe weather, which affected both trial scheduling and witness availability, the parties agreed to permit the defense witness to testify prior to the conclusion of the People's case (30-31, 51, 158-59). 7 Aderogba also testified that he did not see who shot Austin, but carried Austin downstairs on his back (Aderogba: 163-64, 178, 186-87). While downstairs, he stated that he gave the police his name, but admitted that he "told them nothing" {Aderogba: 164, 178-81). Aderogba claimed to have gone to Brookdale Hospital where he snuck past hospital personnel into the ICU to visit Austin {Aderogba: 179-80). Aderogba claimed that he cooperated with the police investigation. Aderogba testified that, on June 8, 2011, he spoke to Detective Raymer on the phone. He claimed that he told Detective Raymer that he did not see what happened and denied refusing to cooperate or hanging up on him {Aderogba: 187-89). On June 12, 2012, Aderogba spoke to Assistant District Attorney Kyle Reeves under a subpoena {Aderogba: 182). Aderogba stated that he told ADA Reeves that he did not see the shooter, but never mentioned that defendant was not at the crime scene. He testified that Reeves never specifically asked if defendant was there (Aderogba: 182-85). Aderogba also denied stating that he attempted to convince Austin not to testify (Aderogba: 185- 8 6) . Aderogba testified that he met with defendant on four separate occasions before the trial and attended a pretrial hearing {Aderogba: 17 3-7 5) . He also stated that he spoke to defendant's family about the case twice {Aderogba: 176). 8 The People's Rebuttal Case The People called Assistant District Attorney KYLE REEVES and recalled Austin to respond to Aderogba's testimony. Defendant objected to ADA Reeves' testimony, but the court ruled it admissible with regard to Aderogba' s allegation that ADA Reeves had not asked him if defendant was present at the crime scene. The court explained that while "[y]ou can't impeach someone for failure to say something as part of a narrative account because in giving a narrative one might not be expected to give every detail," "this is more than just a narrative account" (201-02). The court continued that "you can argue that unless you're asked about it, you shouldn't be expected to say that," but here "one might be naturally expected to say" that "the defendant was never there" "without being asked" (202-03). Whether "it would have been reasonable and logical for the witness to have stated the omitted fact" without being "specifically asked," the court concluded, is "up to the jury" (203) . ADA Reeves testified that he subpoenaed Aderogba to appear at the District Attorney's Office on July 12, 2012, at about 9:30 a.m. (Reeves: 226-27). They had a "comprehensive" conversation for five to ten minutes about what Aderogba saw and who was at the apartment. ADA Reeves "point blank" asked who was in the apartment, and Aderogba replied that there were too 9 many people in the apartment for him to remember them all, except for Austin. They also discussed defendant, but Aderogba never mentioned that defendant was not in the apartment at the time of the shooting (Reeves: 227-30). Aderogba indicated that he would not testify, and ended the interview because he was uncomfortable being at the District Attorney's Office (Reeves: 2271 231) • The People sought to recall Austin to testify that Aderogba "offered him $10,000 not to testify" (204). Defendant objected, arguing that this testimony "suggest[ed] that the defendant somehow was involved in the bribery scheme" (207). The court ruled the testimony admissible and addressed defendant's concern with a limiting instruction: [T]he limiting instruction I would give is with reference to the complaining witness, if he testifies that [Aderogba] offered him money not to testify and tried to persuade him not to testify. The instruction I' 11 give to the jury is there is no evidence, if, even if you find that this happened that this was done at the defendant's request and that the only reason I'm letting you hear the testimony is to show for your, the jurors', consideration whether or not [Aderogba] has a friendship towards the defendant that influenced the truthfulness of his testimony .. I' 11 tell the jury there was no evidence that the defendant was involved. [Aderogba] was doing this out of his own pocket because he's such good friends with the defendant. . . The purpose of the testimony is to show the bias the witness 10 has in this case towards the defendant and, therefore, is not telling the truth, ultimately when he says that the defendant was not present at the time of the shooting. (206-208). The court further explained that it was up to the People "to try to convince the jury that it actually happened," while defendant "can cross-examine [Austin] about all this" (208). Austin testified that in the year between the shooting and the trial, Aderogba told him not to testify three or four times. He implored Austin not to "go into the white man's system,'' but to "handle it on the streets" (Austin: 233, 235-36). Aderogba once offered Austin $10,000 not to testify, but Austin declined (Austin: 234-35, 237-38). At this point, the court gave the jury the following limiting instruction: ladies and up to you but this Let me explain something, gentlemen. The testimony, it's whether or not to credit or not, testimony is only limited to as to or not it affects your evaluation Aderogba's testimony. whether of Mr. There is no evidence that this offer of money or these requests not to testify were done at the request of the defendant or that the defendant had any knowledge assuming he'd ever have it that Mr. Aderogba was offered money for that, Mr. Aderogba ever offered money to the witness or Mr. Aderogba ever requested the witness not to testify. No evidence at all that the defendant knew anything about this, assuming it ever took place. It's only to evaluate, if you find 11 (234). it did take place, your evaluation of Mr. Aderogba' s testimony and whether or not he has any bias or interest that might affect the believability of his testimony. Austin did not inform law enforcement about the $10,000 offer not to testify until after he initially testified (Austin: 239-40). The Verdict and the Sentence The jury found defendant guilty of Attempted Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Attempted Robbery in the First Degree. ( 333-35) . Defendant was sentenced to concurrent prisons terms of f·ourteen years, plus five years of post-release supervision, on all counts (S. 9-10). 12 POINT I THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO PERMIT THE PEOPLE TO IMPEACH THE DEFENSE WITNESS WITH PRIOR OMISSIONS. The trial court properly permitted the People to impeach defense witness Aderogba, both on cross-examination and during rebuttal, with his prior omissions. Aderogba discussed defendant's case with defendant and his family, and thus was aware of the charges against defendant. Yet, prior to trial, Aderogba never told law enforcement officials about defendant's alleged absence from the crime scene, despite having had multiple conversations with them. This omission was unnatural, overwhelmingly significant, and, therefore, admissible as impeachment evidence as trial. "It is well established that a witness' prior inconsistent statements may be used to impeach his trial testimony," including "omitting to mention critical facts at the prior time." People v. Bornholdt, 33 N.Y.2d 75, 88 (1973). Such omissions are admissible if "at the prior time the witness' attention was called to the matter," id., or "when given circumstances make it most unnatural to omit certain information from a statement." People v. Savage, 50 N.Y.2d 673, 679 (1980); see People v. Dawson, 50 N.Y.2d 311, 318 (1980) ("[T]he failure to speak up at a time when it would be natural to do so might 13 well cast doubt upon the veracity of the witness' exculpatory statements at trial."). The Court of Appeals has repeatedly held that cross- examining a defense witness concerning his prior omissions "might well aid the trier of fact in its effort to determine whether the testimony of a defense witness is an accurate reflection of the truth or is, instead, a 'recent fabrication.'" Dawson, 50 N.Y.2d at 321; see Savage, 50 N.Y.2d at 679 (discussing an omission "of such overwhelming significance that its absence from the narrative was at least as calculated to distort [the witness'] recitation as a most affirmative falsehood") . The Court merely requires that "the witness ( i) was aware of the nature of the charge pending against the defendant; (ii) had reason to recognize that he or she possessed exculpatory information; (iii) had a reasonable motive for acting to exonerate the defendant; and (iv) was familiar with the means of making such information available to law enforcement authorities." People v. Miller, 89 N.Y.2d 1077, 1079 (1997) (citing Dawson, 50 N.Y.2d at 321 n.4). Aderogba's failure to tell ADA Reeves of defendant's alleged absence from the scene of the crime was unnatural and overwhelmingly significant. All four of the Dawson criteria were easily satisfied prior to the People's cross-examination of Aderogba. First, Aderogba was aware of the charges pending 14 against defendant. He testified that he met with defendant and his family to discuss the case, and that he spoke to ADA Reeves under a subpoena (Aderogba: 173-76, 182). Second, because Aderogba was aware that defendant was charged with shooting Austin, Aderogba had reason to recognize that his allegation that defendant was not present at the crime scene was exculpatory. Third, Aderogba had a motive to exonerate defendant because they were "good friends" and he cares about defendant's family (Aderogba: 170-71). Finally, Aderogba could have easily made the exculpatory information available to Assistant District Attorney Reeves when Reeves interviewed him. Instead, Aderogba chose to omit this information. See Miller, 89 N.Y.2d at 1079-80 (finding proper foundation laid for cross- examination of defendant's alibi witnesses' omissions where witnesses refused to speak to Assistant District Attorney "because they did not feel comfortable"). Moreover, a trial court is permitted wide latitude in ruling on the scope of cross-examination, and its rulings are not to be disturbed on appeal absent a plain abuse of discretion. People v. Sorge, 301 N.Y. 198 (1950); People v. Singh, 262 A.D.2d 431 (2d Dep't 1999). When considering the adrnissibili ty of prior omissions, "the balance should be struck in favor of admissibility, leaving to the jury the function of determining what weight should be assigned the impeachment 15 evidence." People v. Wise, 46 N.Y.2d 321, 327 (1978); see People v. Bishop, 206 A.D. 884 (4th Dep't 1994) (finding that even where inconsistency of an unnatural omission is "arguable," "the court should admit the evidence for whatever weight the jury might give it") . Hence, the trial court properly allowed the cross-examination concerning Aderogba' s prior omissions. See Hoberman v. Lane, 85 A.D.2d 595, 595-96 (2d Dep' t 1981) (reversing trial court for precluding cross-examination of police officer concerning omission in police report); People v. Marks, erred 221 A.D.2d 635 (4th Dep't 1995) by precluding impeachment of (finding that trial court witnesses with prior statements that "made no mention of material facts that they related at trial") . Defendant's claims that the People did not lay the requisite foundation to cross-examine Aderogba ignore Aderogba's prior testimony and mischaracterize the case law (Def.'s Br. at 30-37) . Most of the cases cited by defendant are inapposite because they do not discuss unnatural omissions, and the few that do distinguish between cross-examination about "defendant's silence," which raises "due process considerations," and "an ordinary witness who may have no personal stake in remaining silent and who, indeed, may very well have a personal interest in speaking up in order to aid the defendant." Dawson, 50 N.Y.2d at 321 (emphasis in original) . While defendant 16 catalogues possible explanations for Aderogba' s prior omission (Def.'s Br. at 36), the Court of Appeals is clear that the jury should weigh such information to "determine for itself whether the witness' trial testimony is consistent with his prior behavior and assertions." Dawson, 50 N.Y.2d at 322. Additionally, because ADA Reeves specifically called Aderogba' s attention to the question of who was present, ADA Reeves' testimony concerning Aderogba's prior omission was properly admitted. See Bornholdt, 33 N.Y.2d at 88-89. While defendant claims that ADA Reeves' testimony was cumulative (Def.'s Br. at 38-39), "the issue of whether evidence should be excluded as cumulative rests within the sound discretion of the trial court." Bergamaschi v. Gargano, 293 A.D.2d 695 (2d Dep't 2002) (citing cases) . 5 Finally, even if the People did not lay the requisite foundation to impeach Aderogba, any error was harmless because Aderogba offered testimony about why he did not provide exculpatory information to law enforcement. See People v. Kitt, 126 A.D.2d 669 (2d Dep't 1987) (finding that "any Dawson error which might have occurred would be harmless" because the 5 Defendant's reliance on People v. Conroy, 102 A.D.3d 979, 980- 81 (2d Dep' t 2013), is misplaced because that case concerned discrepancies among a witness' statements to the police, not wholesale omissions of allegedly exculpatory information. Moreover, Conroy affirms the principle of that trial courts have the discretion to rule on whether evidence is cumulative. 17 "witness offered an explanation as to his failure to come forward earlier"); People v. Mullins, 118 A.D.2d 737 (2d Dep't 1986) (holding that defendant was not prejudiced by the prosecutor's questioning of defendant's witness' failure to provide law enforcement authorities with exculpatory information where "no foundation was laid" and "no bench conference called" because the witnesses offered explanations for her failure). Here, Aderogba claimed that he did not provide law the exculpatory information because ADA Reeves did not expressly ask him if defendant was present at the apartment during the shooting (Aderogba: 183-85). harmless. Accordingly, any Dawson error was Accordingly, defendant's claim that the People denied him a fair trial by impeaching Aderogba with his prior omissions is without merit. The trial court properly exercised its discretion to permit cross-examination of Aderogba about the omissions and to admit ADA Reeves' relevant testimony on that topic. 18 POINT II THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION TO PERMIT THE VICTIM'S TESTIMONY CONCERNING THE DEFENSE WITNESS' BRIBERY ATTEMPT. The trial court properly exercised its discretion to permit the victim to testify about the defense witness' attempt to bribe him not to testify. Defendant was not denied a fair trial by the introduction of this highly probative evidence, and any potential prejudice to defendant was cured by the court's limiting instruction. "[T]rial courts have broad discretion to keep the proceedings within manageable limits," but "extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground." People v. Spencer, 20 N.Y.3d 954, 956 (2012) (quotation omitted); see also Hoag v. Wright, 174 N.Y. 36, 45-46 (1903) ("The relations which a witness has to the case or to a party, threats made by him, the fact that a party tried to bribe him, the fabrication, destruction, or concealment of evidence, and the like, may be shown."). A trial court may exclude evidence that is too remote or speculative, but should admit proof of motive to fabricate that proceeds upon some good faith basis. People v. Ocampo, 28 A.D.3d 684, 685-66 (2d Dep't 2006); People v. Hudy, 174 N.Y.2d 40, 56-57 (1988); see also People v. Pereda, 200 A.D.2d 774, 774 19 (2d Dep't 1994) ("Whether evidence is 'too remote'--i.e., whether it is proximately relevant to some fact in issue--is a question for the court." (quotation omitted)). Austin told the prosecutor about Aderogba's bribery attempt, and the prosecutor informed both the court and defense counsel of this information. The People, therefore, had a good faith basis for eliciting Austin's testimony about the bribery attempt ( 20 4; Austin: 239-41). This evidence is highly probative because it goes directly to Aderogba' s credibility, which was a central issue in the case. See Ocampo, 28 A.D.3d at 686 (finding that evidence of motive to fabricate was not speculative because it was offered in good faith to attack witness' credibility); People v. Ashner, 190 A.D.2d 238, 247-48 (2d Dep't 1993) (same) . Moreover, this testimony directly contradicts Aderogba's testimony denying that he tried to convince Austin not to testify (Aderogba: 185-86). The trial court properly recognized that questions concerning the veracity of this testimony were issues of weight, not admissibility, to be decided by the jury (206-07). See Ashner, 190 A.D.2d at 248 ("'We cannot speculate as to whether the jury would have accepted this line of reasoning [,] but we do conclude that the jurors were entitled to have the benefit of [this] theory before them so that they could make an informed judgment as to the 20 weight to place on the witness's testimony.'" (quoting Davis v. Alaska, 415 U.S. 308, 317 (1974)) (alterations in original)). Defendant argues that he was denied a fair trial because the probative value of Austin's testimony concerning the bribery attempt was outweighed by the prejudicial risk that the jury would attribute the bribe to him (Def. 's Br. at 47-50). "A court may, in its discretion, exclude relevant evidence if its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury." People v. Primo, 96 N.Y.2d 351, 355-56 (2001); see People v. Scarola, 71 N.Y.2d 769, 777 (1988). But "[t] his weighing of probative value versus potential for undue prejudice is discretionary," so appellate review "is limited to determining whether the trial court abused its discretion." People v. Cass, 18 N.Y.3d 553, 560 n.3 (2012). The trial court properly exercised its discretion in concluding that the probative value of the challenged testimony outweighed its potential for undue prejudice to the defendant. Moreover, any prejudice was mitigated by the court's appropriate limiting instructions. People v. Sheehan, 105 A.D.3d 873, 874- 75 (2d Dep't 2013). The court carefully weighed the testimony as proof of Aderogba' s bias against the prejudicial risk that the jury might attribute the bribery attempt to defendant and found it admissible (206-09). The court then instructed the 21 jury that the testimony was only admissible to evaluate Aderogba' s credibility, since there was "[n] o evidence at all that the defendant knew anything about this, assuming it ever took place" (234). Defendant, therefore, was not deprived of a fair trial by the admission of Aderogba' s testimony about the bribery attempt. See Sheehan, 105 A.D.3d at 875 (finding that "any potential for prejudice from the testimony . . . was limited by the court's appropriate limiting instructions as to the narrow purpose for which that evidence could be considered") . 6 Defendant suggests that the trial court's mention of "[a]ppellate review," when defense counsel objected to the court's ruling on the testimony about the bribery attempt, demonstrates that the trial court was uncertain of whether its ruling was proper. (Def.'s Br. at 49) . This suggestion mischaracterizes the record. Put in context, the trial court's statement arose after the trial court ruled admissible Austin's testimony concerning Aderogba's bribery attempt. Defense counsel objected so that "[t] he record is noted," prompting the 6 Defendant relies on People v. Calabria, 94 N.Y. 2d 519, 523 (2000), for the proposition that limiting instructions are not always sufficient to mitigate prejudice. But, Calabria is inapposite here because the prosecutor in that case repeatedly ignored the trial court's rulings and the court's limiting instructions were insufficient to cure the resulting prejudice. Here, by contrast, the prosecutor followed the court's rulings and instructions. 22 court to ask defense counsel if he meant ~[f]or Appellate review." Defense counsel replied that "I want the record to reflect I take a strenuous objection" (208). Hence, the court's mention of appellate review did not suggest that the court was uncertain of the propriety of its ruling. Furthermore, although defense counsel successfully preserved the claim concerning the testimony about the bribery attempt for appellate review, that review, as discussed above, is limited to determining whether the trial court abused its discretion. Cass, 18 N.Y. 3d at 560 n.3. In sum, the trial court did not abuse its discretion in admitting the victim's testimony concerning defense witness' bribery attempt, and cured any potential prejudice to defendant by issuing a limiting instruction. 23 POINT III DEFENDANT'S CLAIM CONCERNING THE EXCUSAL OF CERTAIN PROSPECTIVE JURORS FOR HARDSHIP IS UNPRESERVED AND MERITLESS. Towards the beginning of voir dire, on October 25, 2012, the trial court asked potential jurors if personal, business, or family cornrni tments would make serving on the jury a hardship. The court permitted potential jurors to indicate hardship in open court, with all counsel present, excused those jurors, and directed them to talk to the clerk about scheduling logistics (VD 11-13) . Defendant did not object to the discharge of those prospective jurors. Defendant now claims that he "was denied his right to have a judge oversee the empanelment process" ( Def. 's Br. at 52) . Because defendant did not object to the excusal of those prospective jurors, defendant's claim is unpreserved. See C.P.L. § 470.05(2); People v. Casanova, 62 A.D.3d 88, 90-92 (1st Dep't 2009) (finding that because defendant did not object to the jury screening procedure employed by the trial court, defendant failed to preserve claim that "by excusing all potential jurors who believed their schedules or other personal issues would not allow them to serve on a case of this length or of this seriousness, instead of rendering individual determinations as to juror hardship, the court abdicated its judicial function"); People v. King, 110 A.D.3d 1005 (2d Dep't 24 2013) (same); see generally People v. Toussaint, 40 A. D. 3d 1017, 1017-18 (2d Dep't 2007) (holding that defendant failed to preserve claim that court erred by discharging prospective jurors without conducting any inquiry concerning their ability to serve because "defendant made no objection prior to the discharge of the jurors"); Wydner v. Smith, No. 09 Civ. 4541 (LAP) (JLC), 2011 WL 70556, at *9 (S.D.N. Y. Jan. 10, 2011) (noting that, in recommendation to deny habeas petition, "New York courts consistently require compliance with the contemporaneous objection rule" where trial courts discharge prospective jurors without conducting thorough inquiry into whether prospective jur?rs could be fair). Contrary to defendant's contention (Def.'s Br. at 54), the purported error in the jury selection process did not fall within the "very narrow category" of "mode of proceedings" errors that are not subject to the preservation requirement. Casanova, 62 A.D.3d at 90-92. Defendant's reliance on People v. Ahmed, 66 N.Y.2d 307, 310-12 (1985), is misplaced because the judge in Ahmed was absent from the courtroom. Here, the trial judge excused potential jurors who announced, in open court, that serving on the jury would be a hardship. constitute a "mode of proceedings" error. This did not See People v. Cunningham, 119 A.D.3d 601, 601 (2d Dep't 2014) ("[T]he allegedly improper excusal of those jurors did not constitute a mode of 25 proceedings error exempting [defendant] from the rules of preservation."); Casanova, 62 A.D.3d at 92. Moreover, defendant's claim is without merit. "The determination as to whether a prospective juror can provide reasonable jury service in a given case is left largely to the discretion of :the trial court." People v. Pagan, 191 A.D.2d 651, 651-52 (2d Dep't 1993) (citing People v. Williams, 63 N.Y.2d 882, 885 (1984)); see People v. Heckstall, 45 A.D.3d 907, 908 (3d Dep't 2007) ("The determination to excuse a prospective juror before formal voir dire has begun is a matter resting solely in the discretion of the court."). In defendant's case, the trial court properly exercised its discretion to discharge the prospective jurors who believed they would suffer hardship by serving. See Casanova, 62 A. D. 3d at 90-92 (holding that court's excusal, without any inquiry, of all prospective jurors who believed that their schedules would not allow them to serve on case did not impair defendant's constitutional right to jury trial); King, 110 A. D. 3d at 1006 (same) ; see generally Cunningham, 119 A.D.3d at 601 (finding that trial court properly exercised discretion by excusing prospective jurors before start of voir dire for their inability to serve fairly) ; People v. Umana, 76 A.D. 3d 1111, 1112 (2d Dep't 2010) (same); Toussaint, 40 A. D . 3d at 1 0 1 7 -18 ( s arne) . Defendant' s reliance on People v. Velasco, 77 N.Y.2d 469, 473 {1991), for the proposition that 26 defendant was deprived of his right to counsel by the trial court's jury selection procedures, is surprising because the Court there held that "the determination that a prospective juror was disqualified before voir dire was a matter for the court and defendant had no statutory or constitutional right to personally participate in the discussions leading to the court's ruling," with no discussion of the right to counsel. In any case, the trial court asked potential jurors about hardship in open court with all counsel present (VD 11-13). Defendant's argument that the trial court improperly delegated its responsibility to oversee jury selection to his clerk mischaracterizes the record (Def. 's Br. at 51-53). The court told prospective jurors that anyone excused for hardship would not be excused from jury duty and that the clerk would either assign the excused prospective juror to another trial or send the juror home without giving the juror credit for jury duty. The trial court then excused the prospective jurors who maintained that serving on the jury in this case would be a hardship. The court did not leave the decision of whether to excuse these prospective jurors to the clerk. The clerk's role was ministerial. Once the court had already excused the prospective jurors, the court sent the jurors to the clerk so that the clerk could either reassign them or send them home. Hence, defendant's contention that the court improperly 27 delegated its duties to the clerk is not supported by the record, and defendant's citations concerning delegation are, therefore, inapposite. In sum, defendant's claim concerning the excusal of certain prospective jurors for hardship is unpreserved and without merit. Accordingly, reversal of defendant's conviction based on defendant's unwarranted. challenge to the 28 jury selection process is POINT IV DEFENDANT'S SENTENCE WAS NEITHER HARSH NOR EXCESSIVE. This Court should not reduce defendant's sentence. The determination of an appropriate sentence rests within the sound discretion of the sentencing court, and should not be modified absent a clear abuse of discretion or a failure to observe sentencing principles. See People v. Felix, 58 N.Y.2d 156, 161 (1983); People v. Suitte, 90 A.D.2d 80, 85 (2d Dep't 1982). The sentencing court's decision "should be afforded high respect" because the appellate court lacks some of the first-hand knowledge of the case that the sentencing judge is in a position to obtain. Suitte, 90 A.D.2d at 85. Defendant was found guilty of attempted first-degree assault, attempted first-degree robbery, and second-degree weapon possession. In the course of trying to rob the victim, defendant shot the victim in the chest. The victim lives with constant pain as a result of the gunshot wound. The People asked for a prison sentence of twenty years (S. 6). The court imposed a fourteen year sentence (S. 9-10), which was a midrange sentence for this group of violent felonies (see P. L. § 70. 02 [1] [a], [3] [b]). Defendant cites no extraordinary circumstances warranting a reduction of his sentence. 29 Defendant argues that the sentencing court "gave little weight" to the fact that this was his first felony charge (Def.'s Br. at 55-56). Yet the court expressly noted that defendant "does have a criminal record," but "does not have any prior felony convictions," immediately before announcing the sentence (S. 9). The sentencing court did not abuse its discretion because it took into account all factors, including defendant's status as a first-time felony offender. See People v. Marti, 131 A.D.2d 597 (2d Dep't 1987) (finding defendant's contention that sentence was excessive unpersuasive in light of sentencing court's awareness of factors relevant to sentencing including defendant's background, criminal history, and nature of crime committed). Accordingly, defendant's sentence should be affirmed. 30 CONCLUSION FOR THE AFOREMENTIONED REASONS, DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Brooklyn, New York September 30, 2014 LEONARD JOBLOVE AMY APPELBAUM Assistant District Attorneys of Counsel JOSHUA S. LEVY Special Assistant District Attorney of Counsel Associate Sullivan & Cromwell LLP 31 Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County Certificate of Compliance Pursuant to 22 NYCRR § 670.10.3(f) The foregoing brief was prepared on a computer. typeface was used, as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double A monospaced According to the word count of the word processing system used to prepare this brief, the total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6,078. Amy Appelbaum Assistant District Attorney