THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMELL MCCULLOUGH DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law § 140.30[4] ), robbery in the first degree (§ 160.15[4] ), robbery in the second degree (§ 160.10 [1] ), and assault in the second degree (§ 120.05[2] ).   The conviction arises out of an incident in which defendant and two codefendants broke into an apartment and stole money and property from a woman (hereafter, robbery victim) inside.   In addition, a codefendant used a shotgun to shoot two men—only one of whom (hereafter, shooting victim) testified against defendant—as the men fled after coming to the door of the apartment during the robbery.   Defendant was convicted at his third trial following two prior trials that resulted in hung juries.

Contrary to defendant's contention, Supreme Court did not err in admitting the robbery victim's testimony from his second trial in evidence at the third trial.   The People established that they exercised the required due diligence in attempting to secure the robbery victim's appearance at the third trial but could not locate her (see CPL 670.10[1];  People v. Arroyo, 54 N.Y.2d 567, 571–574, cert denied 456 U.S. 979;  People v. DeJesus, 110 AD3d 1480, 1481, lv denied 22 NY3d 1155;  People v. Koberstein, 261 A.D.2d 849, 849–850, lv denied 94 N.Y.2d 798).   Moreover, the admission of her prior testimony did not violate defendant's right of confrontation because he “had a full opportunity to cross-examine [her] at his two prior trials” (People v. Biggs, 52 AD3d 620, 620, lv denied 11 NY3d 785, cert denied 555 U.S. 1179;  see People v. Mejia, 126 AD3d 1364, 1365;  cf.  People v. Simmons, 36 N.Y.2d 126, 129–131).

Defendant further contends that the People violated their discovery, Brady, and Rosario obligations by failing to disclose in a timely manner the existence of two pending criminal actions against the shooting victim (see CPL 240.45 [1][c] ), as well as by failing to turn over an accusatory instrument containing statements made by the shooting victim in connection with one of the pending actions (see CPL 240.45[1][a] ).   Defendant failed to preserve his challenge to the timing of the disclosure of the pending criminal actions (see generally People v. Kessler, 122 AD3d 1402, 1404), and he also failed to preserve for our review his contention that a Brady violation occurred (see generally People v. Caswell, 56 AD3d 1300, 1303, lv denied 11 NY3d 923, reconsideration denied 12 NY3d 781).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's contention, the failure to disclose the accusatory instrument did not violate CPL 240.45(1)(a) or the Rosario rule because the shooting victim's statements therein did not relate to the subject matter of his testimony (see CPL 240.45[1][a];  People v. Perez, 65 N.Y.2d 154, 158–159;  People v. Matos, 158 A.D.2d 959, 959, lv denied 75 N.Y.2d 968), notwithstanding that the prosecutor asked the shooting victim about his pending criminal actions on direct examination “to blunt the effect of anticipated impeachment” (People v. Harrell, 251 A.D.2d 240, 241, lv. denied 92 N.Y.2d 925).

We reject defendant's contention that the court abused its discretion in refusing to allow him to admit in evidence the shooting victim's alleged prior inconsistent statements contained in the accusatory instrument, which defense counsel obtained after the shooting victim had already testified.   Defendant failed to lay a proper foundation for the admission of the statements through a police witness (see People v. Fiedorczyk, 159 A.D.2d 585, 586–587, lv denied 76 N.Y.2d 788;  see generally People v. Duncan, 46 N.Y.2d 74, 80–81, rearg. denied 46 N.Y.2d 940, cert denied 442 U.S. 910, rearg dismissed 56 N.Y.2d 646;  People v. Owens, 70 AD3d 1469, 1470, lv denied 14 NY3d 890).   Furthermore, defendant did not preserve his contention that he should have been afforded an opportunity to recall the shooting victim to question him about the statements, and we decline to exercise our power to review it as a matter of discretion in the interest of justice.

Defendant failed to preserve for our review his contention that, in sentencing him, the court penalized him for exercising the right to a jury trial, inasmuch as he failed to raise that contention at sentencing (see People v. Motzer, 96 AD3d 1635, 1636, lv denied 19 NY3d 1104).   In any event, we conclude that the court “did not impermissibly punish [defendant] for exercising his right to proceed to trial by imposing a sentence of 15 years['] imprisonment after he rejected a plea offer of five years” (People v. Melendez, 71 AD3d 1166, 1167, lv denied 15 NY3d 753;  see People v. Pena, 50 N.Y.2d 400, 411–412, cert denied 449 U.S. 1087).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court