PEOPLE v. KLOSIN (2001)

On appeal from a judgment convicting him of murder in the second degree (Penal Law § 125.25[3] [two counts] ), robbery in the first degree (Penal Law § 160.15[4] ), and burglary in the first degree (Penal Law § 140.30 [4] ), defendant contends that the People's presentation of false evidence rendered the Grand Jury proceedings defective and the evidence before the Grand Jury insufficient;  that County Court committed reversible error in marshaling trial evidence that had not been presented to the Grand Jury;  that defendant was deprived of a fair trial as a result of prosecutorial misconduct;  that the verdict is against the weight of the evidence on the issue whether defendant caused the victim's death;  that the court erred in permitting the victim's treating physician to testify concerning the cause of death;  that the court erred in failing to give a missing witness charge;  and that the sentence is unduly harsh or severe.

 There is no indication that the People knowingly or deliberately presented false testimony before the Grand Jury, and thus there is no basis for finding that the integrity of the Grand Jury proceedings was impaired or the indictment rendered defective by the alleged false testimony (see, People v. Pelchat, 62 N.Y.2d 97, 107, 476 N.Y.S.2d 79, 464 N.E.2d 447;  People v. Andrews, 274 A.D.2d 835, 837, 711 N.Y.S.2d 842;  People v. Ponnapula, 266 A.D.2d 32, 698 N.Y.S.2d 219, lv. denied 94 N.Y.2d 951, 710 N.Y.S.2d 8, 731 N.E.2d 625;  People v. Bennett, 244 A.D.2d 923, 925, 665 N.Y.S.2d 244, lv. denied 91 N.Y.2d 889, 92 N.Y.2d 847, 669 N.Y.S.2d 3, 677 N.Y.S.2d 78, 691 N.E.2d 1029, 699 N.E.2d 438).   The record is insufficient to enable us to review whether the alleged false testimony materially influenced the Grand Jury, thus giving rise to the requisite possibility of prejudice to defendant (see, People v. Mariani, 203 A.D.2d 717, 719, 610 N.Y.S.2d 967, lv. denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334;  People v. DeFreece, 183 A.D.2d 842, 842-843, 584 N.Y.S.2d 91;  People v. Hutson, 157 A.D.2d 574, 550 N.Y.S.2d 317, lv. denied 75 N.Y.2d 967, 556 N.Y.S.2d 252, 555 N.E.2d 624;  see generally, CPL 210.35 [5];  People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362).   A challenge to the sufficiency of the evidence before the Grand Jury is not reviewable on appeal from a conviction rendered on legally sufficient evidence (see, CPL 210.30 [6];  People v. Russin, 277 A.D.2d 880, 716 N.Y.S.2d 217;  People v. Kemp, 273 A.D.2d 806, 708 N.Y.S.2d 542).   In any event, the sufficiency of the evidence before the Grand Jury is not affected by whether some of the evidence was later revealed to be mistaken or even perjurious (see, People v. Swamp, 84 N.Y.2d 725, 731, 622 N.Y.S.2d 472, 646 N.E.2d 774).  “Evidence later proven unreliable can legally support an indictment” (People v. Swamp, supra, at 731, 622 N.Y.S.2d 472, 646 N.E.2d 774).

 The verdict is not against the weight of the evidence on the issue whether the fright and stress of the break-in and gunpoint robbery caused the victim's death two days later (see, People v. Burnett, 205 A.D.2d 792, 793, 614 N.Y.S.2d 34, lv. denied 84 N.Y.2d 866, 618 N.Y.S.2d 12, 642 N.E.2d 331;  People v. Seymour, 183 A.D.2d 35, 36-37, 588 N.Y.S.2d 551, lv. denied 81 N.Y.2d 766, 594 N.Y.S.2d 729, 610 N.E.2d 402;  see generally, People v. Ingram, 67 N.Y.2d 897, 501 N.Y.S.2d 804, 492 N.E.2d 1220;  Matter of Anthony M., 63 N.Y.2d 270, 481 N.Y.S.2d 675, 471 N.E.2d 447).   The court properly refused to give a missing witness charge with respect to defendant's accomplice, who was living in England at the time of trial and thus was neither available to testify nor under the control of the People (see, People v. Delacruz, 276 A.D.2d 387, 714 N.Y.S.2d 277;  People v. Escalera, 220 A.D.2d 259, 632 N.Y.S.2d 80, lv. denied 87 N.Y.2d 846, 638 N.Y.S.2d 604, 661 N.E.2d 1386;  see generally, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).

We have considered defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: