People v. Brazzeal

Kunzeman, J.,

dissents and votes to affirm the judgment appealed from, with the following memorandum, in which Thompson, J. P., concurs. Although the People concede that the prosecutor "made some errors in his questioning of Tarik Greene”, it is my view that, under the circumstances of this case, none of the prosecutor’s alleged errors warrants reversal. At trial, Greene testified that he had not seen the shooting and specifically denied having told law enforcement officers that he had observed a male, kneeling on the back seat of a taxi cab, holding a gun to the driver’s head. The People, in an attempt to refresh Greene’s recollection, utilized a tape of his conversation with the prosecutor. Greene conceded that the voice on the tape was his. Greene then testified that his prior statement, regarding his presence in the cab at the time of the shooting and his observation of someone holding a gun to the driver’s head, was false. Greene also testified that he had lied when he told the prosecutor that he saw an individual named Sean, who was not the defendant, shoot the cab driver. The trial court designated Greene a hostile witness. The prosecutor was then permitted to question Greene about his previous contradictory statements to Detective Norrito and Assistant District Attorney Lobell.

*763 Significantly, the defense failed to act upon the trial court’s offer to entertain a motion for a mistrial based upon the testimony of Tarik Greene. Consequently, the defendant’s claim that he is entitled to a new trial now, on the basis of the prosecution’s direct examination of Greene, is unpreserved for appellate review (CPL 470.05 [2]; People v Udzinski, 146 AD2d 245, 249-252 ). In fact, after the trial court advised the jurors that the prosecutor’s questions regarding Greene’s prior contradictory statements were for the limited purpose of impeaching that witness’s credibility, the following line of questioning took place without any objection from the defense counsel:

"By [assistant district attorney]

"Q Now, Mr. Green [sic], just so that I’m clear, is it or is it not a fact you spoke to Detective Norito [sic] on January 31st of 1985 in relation to the incident of January 28th, 1985? Just that you spoke to him?

"A Yes.

"Q And isn’t it also a fact that you spoke to him again on February 3rd, 1985, relative to the incidents of January 28th of 1985?

"A I believe it is.

"Q And isn’t it also a fact that you spoke to an Assistant District Attorney by the name of Douglas Lobel [sic] on February 4th of 1985, relative to the incident of January 28th of 1985 and what you saw?

"A Yes.

"Q And, Mr. Green [sic], isn’t it a fact that the person that you saw getting out of the backseat of that cab, just after a shot was fired, was a person who you knew as Sean and who is, in fact, this defendant, this defendant, getting out of the backseat of the cab on January 28th, 1985, just after a shot was fired, at about 8:00 o’clock in the evening?

"A Definitely not.

"[assistant district attorney]:

"No further questions.”

In view of this failure by the defendant to object to the impeachment of the People’s own witness, the error is clearly unpreserved and waived (see, People v Toney, 132 AD2d 955 ).

Unlike the majority, I am disinclined to reach this issue on the merits in the exercise of our interest of justice jurisdiction. Nevertheless, upon considering the merits of this unpreserved issue, as the majority has done, I find sufficient basis in the *764 record to warrant an affirmance of the judgment under review.

Since the People conceded that Greene’s prior contradictory statements were neither sworn nor reduced to writing and signed by him, the prosecutor’s use of those statements for impeachment purposes was violative of CPL 60.35 (1). However, the existence of such an error does not necessarily mandate a reversal (see, People v Broomfield, 163 AD2d 403 ). Case law indicates that such an error does not mandate reversal where proof of guilt is overwhelming and the court has issued admonitions to the jurors that the witness’ prior inconsistent statements were to be considered for impeachment purposes only (see, People v Rios, 166 AD2d 616 ; People v Comer, 146 AD2d 794 ; cf., People v Mitchell, 143 AD2d 147 ; People v Winchell, 98 AD2d 838 , affd 64 NY2d 826 ).

The proof of guilt in the instant case includes the positive identification testimony of Ervin Charlton, who had been a passenger in the taxi cab and was an eyewitness to the fatal shooting, and the fact that the deceased was killed with a .25 caliber bullet of the type found in the defendant’s home. Although Charlton had never seen the defendant before this encounter, he had ample opportunity to observe the defendant at close range during the incident. Charlton’s testimony was unequivocal and he never expressed the slightest doubt that the defendant was the perpetrator. The jurors found his testimony to be inherently credible and there is no basis in the record for interfering with that assessment. The scene was amply lit by a streetlight. Moreover, Charlton’s description of events leading up to the murder, specifically the sale of the VCR to the decedent, was corroborated by Citibank records which showed a withdrawal of $100 from the decedent’s account at a Citibank branch at the corner of Utica and Clarkson Avenues at 7:49 p.m. on January 28, 1985. In view of what I perceive to be the overwhelming evidence of the defendant’s guilt, the defendant’s unpreserved claim of error regarding the prosecutor’s questioning of Tarik Greene does not compel reversal of the judgment of conviction.

The defendant’s numerous claims of error surrounding the prosecutor’s summation are mostly unpreserved for appellate review by virtue of the defendant’s failure to have raised those claims during trial. The sole preserved claim of error pertained to the prosecutor’s argument that Greene’s denial that the defendant was the shooter in fact indicated that the defendant was the shooter. The prejudicial impact thereof was minimized by the prosecutor’s repeated admonitions to the *765 jurors that their conviction should be based on the testimony of Ervin Charlton rather than that of Tarik Greene. The prosecutor merely indicated that Greene’s testimony was one component of the overall evidence which tended to suggest that Charlton’s identification testimony was reliable. Moreover, the trial court unequivocally instructed the jurors, at the commencement of the trial, that the jurors could not assume that something was true simply because a question was asked and the witness denied that it was true. Although defense counsel objected to the argument and made a request to charge after the conclusion of the prosecutor’s summation, he did not move for a mistrial. Thus, defense counsel’s own conduct suggests that the summation did not substantially prejudice him.

By withdrawing his objection to the prosecutor’s comment, during his opening statement, that Tarik Greene knew the defendant, the defense counsel did not preserve that issue for review. The claim is, in any event, without merit. It was reasonable for the jurors to infer that Greene knew the defendant and Rogers (a/k/a Mousey) in light of the testimony that Greene ordered the decedent to stop the cab, called out to Mousey and then engaged both the defendant and Mousey in a conversation regarding the VCR. Even if that conclusion were not fairly inferable from the evidence, the prosecutor’s statement would not require reversal. As the Court of Appeals has held: "[I]t happens not infrequently that a prosecutor is unable to prove every statement made in his opening especially when he must rely on criminal characters. But the general rule is that, absent bad faith or undue prejudice, a trial will not be undone” (see, People v Be Tore, 34 NY2d 199, 207 , cert denied sub nom. Wedra v New York, 419 US 1025 ).

The defendant’s contention notwithstanding, the prosecutor did not improperly bolster the identification testimony of Ervin Charlton via the direct examination of Detective Norrito. Although the prosecutor asked Detective Norrito if he had spoken with Greene, Springer and Mousey, his underlying purpose was to explain why at least two of those witnesses did not testify at the trial. After eliciting the fact that the detective had spoken with those witnesses, the prosecutor asked him if he knew their whereabouts. Not until the end of the prosecutor’s direct examination of Detective Norrito did he elicit the information that the detective had arrested the defendant.

Inasmuch as the defendant’s remaining contentions are *766 either unpreserved for appellate review or patently without merit, I vote to affirm the judgment of conviction.