PEOPLE v. RUINE (1999)

Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered June 25, 1998, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 15 years to life, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There was ample evidence, notably in the form of eyewitness testimony, from which the jury could find that, irrespective of how the altercation began, defendant acted without justification and with intent to kill.   Contrary to defendant's argument, we find that the totality of defendant's actions and statements after the shooting supports, rather than negates, homicidal intent.

 The court's rulings following a note from the deliberating jury were proper exercises of discretion.   The court had denied the People's timely request for a missing witness charge concerning defendant's wife, an eyewitness to the incident, but ruled that the People would be permitted to comment in summation on defendant's failure to call his wife to the stand, and when defendant ultimately rested after calling witnesses, but not his wife, the People's summation featured appropriate comments on that subject (see, People v. Tankleff, 84 N.Y.2d 992, 622 N.Y.S.2d 503, 646 N.E.2d 805).   When the deliberating jury inquired whether it could consider the fact that defendant's wife did not testify, the court was obligated to provide a response that was meaningful (CPL 310.30;  People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463), given the People's summation, and the court appropriately instructed the jury that it could consider the absence of testimony from defendant's wife and give it such weight as the jury chose.   By giving this neutral, innocuous response (see, People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231), which said nothing about drawing inferences, the court did not, as defendant argues, renege on its promise not to give a missing witness charge.   The court also properly exercised its discretion when it denied defendant's belated motion to reopen his case by calling his wife to the stand, or to reopen his summation (see, People v. Olsen, 34 N.Y.2d 349, 357 N.Y.S.2d 487, 313 N.E.2d 782).   Defendant had rested his case and delivered a summation with full knowledge that the People would be commenting in summation on the absence of testimony from defendant's wife.   The events during deliberations did not change the situation to the extent that the extraordinary remedy (id.) of reopening testimony or summations in the midst of deliberations would be required.   In any event, even if we were to find that the court's supplemental instruction or its denial of the application for reopening were error, we would find that such errors could not have affected the verdict.

 The court properly precluded defendant from introducing evidence of the deceased's prior drug use and other bad acts in order to establish his justification defense since the two men were strangers prior to the incident and there was no indication that defendant had any knowledge of these acts (People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841).   We reject defendant's assertion that the People opened the door to the admission of such evidence.   The People only addressed the deceased's conduct during the incident and made no suggestions as to the deceased's character or past conduct.

The challenged portions of the prosecutor's summation did not comment on the fact that defendant did not testify or otherwise deprive defendant of a fair trial (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724;  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

MEMORANDUM DECISION.