PEOPLE v. KOBERSTEIN (1999)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of murder in the second degree (Penal Law § 125.25 [1] ) and sentencing him to consecutive indeterminate terms of incarceration of 25 years to life.   Because defendant's motion to dismiss lacked specificity, defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, that contention lacks merit (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 County Court properly refused to admit into evidence statements of a declarant who was the ex-husband of one victim and the father of the other, and who had died before the commencement of the trial.   Defendant failed to establish supporting circumstances independent of the statements themselves to attest to their trustworthiness and reliability (see, People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 385 N.E.2d 612;  People v. Campbell, 197 A.D.2d 930, 931, 602 N.Y.S.2d 282, lv. denied 83 N.Y.2d 850, 612 N.Y.S.2d 381, 634 N.E.2d 982).   The limited testimony describing a knife and handcuffs known to be possessed by defendant was properly admitted, and the single reference to defendant's nonconsensual use of handcuffs is harmless error (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The court did not abuse its discretion in permitting the prosecutor to ask defendant whether he had been convicted of three prior felonies, including a prior conviction of murder in the second degree (see, People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).  Furthermore, the court properly admitted into evidence the testimony of a witness from defendant's first trial after determining that the People exercised due diligence but could not locate that witness (see, CPL 670.10;   People v. Arroyo, 54 N.Y.2d 567, 571, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855;  cf., People v. Broome, 222 A.D.2d 1094, 636 N.Y.S.2d 243).

 We reject defendant's contention that the court erred in admitting into evidence photographs that were prejudicial and duplicative of other evidence.   Those photographs showed the nature of the injuries, and “any prejudice was outweighed by their relevancy on the material issue of [defendant's intent]” (People v. Fedora, 186 A.D.2d 982, 983, 588 N.Y.S.2d 446, lv. denied 81 N.Y.2d 762, 594 N.Y.S.2d 724, 610 N.E.2d 397;  see, People v. Stevens, 76 N.Y.2d 833, 835, 560 N.Y.S.2d 119, 559 N.E.2d 1278).   We also reject the further contention of defendant that he was denied a fair trial by prosecutorial misconduct on summation.   The prosecutor's remarks were fair response to defense counsel's summation (see, People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Stith, 215 A.D.2d 789, 790, 627 N.Y.S.2d 717, lv. denied 86 N.Y.2d 784, 631 N.Y.S.2d 630, 655 N.E.2d 727;  People v. Dunbar, 213 A.D.2d 1000, 625 N.Y.S.2d 772, lv. denied 85 N.Y.2d 972, 629 N.Y.S.2d 732, 653 N.E.2d 628).

 Defendant failed to establish that he was prejudiced by remarks of the jury foreperson when it was learned that the mother of juror number 10 had died suddenly or by the court's ex parte communication to juror number 10 in response to her question concerning what would happen if she left before a verdict was rendered (cf., People v. Brown, 48 N.Y.2d 388, 394, 423 N.Y.S.2d 461, 399 N.E.2d 51;  People v. De Lucia, 20 N.Y.2d 275, 282 N.Y.S.2d 526, 229 N.E.2d 211).   The court properly interviewed each juror individually and determined that the foreperson's remark and the court's communication bore no substantial relationship to defendant's opportunity to defend against the charges (see, People v. Hameed, 88 N.Y.2d 232, 241, 644 N.Y.S.2d 466, 666 N.E.2d 1339, cert. denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625;  see also, People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836) and were not interpreted by any juror as coercive or prejudicial (cf., People v. Eadie, 83 A.D.2d 773, 774, 443 N.Y.S.2d 477).

 Finally, the sentence, which runs consecutively to a prior indeterminate sentence of 25 years to life, is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: