PEOPLE v. THOMPSON

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Eddie THOMPSON Jr., Appellant.

-- February 23, 2012

Before: MERCURE, ACTING P.J., ROSE, SPAIN, MALONE JR. and McCARTHY, JJ. Jack H. Weiner, Chatham, for appellant. D. Holley Carnright, Kingston (Cindy B. Chavkin of counsel), for respondent.

Appeal from a judgment of the Supreme Court (R. Sise, J.), rendered November 19, 2009 in Ulster County, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Defendant was charged in an indictment with a single count of murder in the second degree after he twice shot his girlfriend at her home. He maintained that the shooting was accidental and, following a jury trial, was convicted of the lesser included offense of manslaughter in the first degree. Supreme Court imposed a prison sentence of 25 years to be followed by postrelease supervision of five years, and defendant appeals.

We affirm. Initially, we reject defendant's argument that Supreme Court erred in refusing to compel pretrial disclosure of the grand jury testimony of the People's ballistics expert.1 Pretrial discovery in criminal proceedings is governed by statute (see People v. DaGata, 86 N.Y.2d 40, 44 [1995]; Matter of Constantine v. Leto, 157 A.D.2d 376, 378 [1990], affd for reasons stated below 77 N.Y.2d 975 [1991] ), and the relevant provision permits discovery of “[a]ny written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment” made by an expert at the People's request (CPL 240.20[1][c] [emphasis added] ). Inasmuch as the expert's oral testimony therefore lies outside of the statute's scope, Supreme Court properly refused to order disclosure pursuant to CPL 240.20 (see People v. Montelbano, 232 A.D.2d 255, 255 [1996], lv denied 89 N.Y.2d 944 [1997] ).

Turning to defendant's various claims regarding jury selection, he waived any argument regarding his unsuccessful challenge for cause to one juror by thereafter declining to use an available peremptory challenge to remove that juror (see CPL 270.20[2]; People v. Jackson, 59 AD3d 736, 736 [2009], lv denied 12 NY3d 916 [2009] ). In contrast, his arguments regarding a prospective juror who lived in the same town as the District Attorney are properly before us. Nevertheless, the juror's “nodding acquaintance” with the District Attorney amounted to occasional encounters at social events that were not likely to preclude the prospective juror from reaching an impartial verdict (People v. Provenzano, 50 N.Y.2d 420, 425 [1980]; see CPL 270.20 [1][c]; People v. Duffy, 124 A.D.2d 258, 260 [1986], lv denied 69 N.Y.2d 710 [1986] ). As such, Supreme Court properly accepted the prospective juror's assurance that he could be impartial in denying defendant's challenge for cause (see People v.. Molano, 70 AD3d 1172, 1174 [2010], lv denied 15 NY3d 776 [2010]; cf. People v. Furey, 18 NY3d 284, 287–288 [2011] ).

Defendant further asserts that the weight of the evidence does not support the jury's finding that he intended to cause the victim serious physical injury (see Penal Law § 125.20[1] ).2 At trial, the victim's daughter contradicted defendant's account of an accidental shooting. Rather, she testified that the victim and defendant had been arguing on the night in question. After hearing screams and a gunshot, the daughter investigated and found defendant aiming the pistol at the victim, who was pleading with him to “stop .” As the daughter ran out of the house while calling 911, she heard a second gunshot. Defendant's account was further undermined by evidence indicating that the victim's gunshot wounds were inconsistent with a rapid and accidental discharge of the pistol. Moreover, bruising on the victim's left temple was noted during the autopsy, and the pathologist opined that the bruising was most likely caused by the victim being struck by the butt of the pistol. According due deference to the jury's determination to credit the version of events that was advanced by the victim's daughter and supported by forensic evidence, we cannot say that the verdict was against the weight of the evidence (see People v. Baker, 27 AD3d 1006, 1009 [2006], lv denied 7 NY3d 785 [2006]; see also People v. Owens, 251 A.D.2d 898, 899–900 [1998], lv denied 92 N.Y.2d 951 [1998] ).

We turn next to defendant's claim that Supreme Court failed to properly investigate a juror's disclosure that she saw a domestic violence poster containing the victim's name and date of death while taking a walk. Supreme Court thoroughly questioned the juror and, in our view, the record fully supports the court's determination that she was not “grossly unqualified to serve” (CPL 270.35[1]; see People v. Buford, 69 N.Y.2d 290, 298–300 [1987]; People v. Pinckney, 220 A.D.2d 539, 539–540 [1995], lv denied 87 N.Y.2d 906 [1995] ). Moreover, defendant participated in this inquiry and did not object to its outcome and, as such, will not be heard to complain that additional investigation was required (see People v. Cecunjanin, 67 AD3d 1072, 1077 [2009], mod on other grounds 16 NY3d 488 [2011]; People v. Pinckney, 220 A.D.2d at 540).

Finally, defendant challenges Supreme Court's refusal to repeat its charge to the jury on the issue of reasonable doubt, which was interrupted when a juror's cell phone went off. The court started the instruction anew after the interruption, and stressed to the jury that the charge would be repeated at the jury's request. The jury did not request that the instruction be repeated and, under the circumstances presented, Supreme Court was under no obligation to do so (see People v. Craig, 293 A.D.2d 351, 351 [2002], lv denied 98 N.Y.2d 674 [2002]; People v. King, 277 A.D.2d 708, 710 [2000], lv denied 96 N.Y.2d 802 [2001] ).

Defendant's challenges to the testimony of the People's forensic pathologist and the composition of the jury panel are not properly before us. We have examined defendant's remaining contentions and conclude that they are without merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.  We note that the expert testified at trial and, as such, his grand jury testimony was later disclosed pursuant to CPL 240.45(1)(a).

2.  Although defendant's challenge is not properly preserved insofar as he attacks the legal sufficiency of the evidence, our weight of the evidence “review necessarily involves an evaluation of whether all elements of the charged crime were proven beyond a reasonable doubt at trial” (People v. Nisselbeck, 85 AD3d 1206, 1207 n 1 [2011]; see People v. Danielson, 9 NY3d 342, 349 [2007] ).

MERCURE, Acting P.J.

ROSE, SPAIN, MALONE JR. and McCARTHY, JJ., concur.

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