PEOPLE v. CRUZ RIVERA (2019)

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, inter alia, murder in the second degree (Penal Law § 125.25[3]), attempted kidnapping in the second degree (§§ 110.00, 135.20), gang assault in the first degree (§ 120.07), and criminal possession of a weapon in the third degree (§ 265.02[1] ).  Contrary to defendant's contention, County Court properly denied his motion to dismiss the indictment on the ground that two witnesses had committed perjury at the grand jury proceeding.  A court may dismiss an indictment upon motion by a defendant if the grand jury proceeding was defective (see CPL 210.20[1][c]).  A grand jury proceeding is defective when, inter alia, “[t]he proceeding otherwise fails to conform to the requirements of [CPL article 190] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5]; see People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996]).  “Dismissal of indictments under CPL 210.35(5) should ․ be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury” (Huston, 88 N.Y.2d at 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362).  “The likelihood of prejudice turns on the particular facts of each case, including the weight and nature of the admissible proof adduced to support the indictment” (id.).  Here, inasmuch as the prosecutor did not knowingly offer perjured testimony and there was sufficient evidence before the grand jury to support the charges without considering the perjured testimony, dismissal of the indictment was not required (see People v. Lumnah, 81 A.D.3d 1175, 1177, 917 N.Y.S.2d 412 [3d Dept. 2011], lv denied 16 N.Y.3d 897, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011]; People v. Bean, 66 A.D.3d 1386, 1386, 885 N.Y.S.2d 804 [4th Dept. 2009], lv denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106 [2010]; People v. Mariani, 203 A.D.2d 717, 719, 610 N.Y.S.2d 967 [3d Dept. 1994], lv denied 84 N.Y.2d 869, 618 N.Y.S.2d 15, 642 N.E.2d 334 [1994]).

Defendant next contends that the court erred in allowing defendant's probation officer to testify regarding the electronic data from defendant's ankle monitor because such testimony was hearsay.  We conclude that defendant's contention is not preserved for our review.  Although defense counsel initially sought to preclude such testimony, the court reserved decision after argument and indicated that it would “handle [the issue] as it unfolds.”  When the probation officer testified the following day, defense counsel requested a limiting instruction but made no further objection to the testimony, in all likelihood because she intended to, and in fact did, cross-examine the witness regarding other data obtained from the ankle monitor.  In any event, we conclude that any error was harmless inasmuch as the evidence was overwhelming and there was no significant probability that the error affected the verdict (see People v. Brown, 57 A.D.3d 1461, 1462, 871 N.Y.S.2d 540 [4th Dept. 2008], lv denied 12 N.Y.3d 814, 881 N.Y.S.2d 22, 908 N.E.2d 930 [2009], reconsideration denied 12 N.Y.3d 923, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009]; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Contrary to defendant's contention, the testimony of the accomplice was sufficiently corroborated by other evidence (see People v. Smith, 150 A.D.3d 1664, 1665, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017]; People v. Highsmith, 124 A.D.3d 1363, 1364, 1 N.Y.S.3d 674 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 524, 37 N.E.3d 1167 [2015]).  Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).  We also reject defendant's contention that the court erred in denying his request for a missing witness charge.  The People demonstrated that the witness was uncooperative with them and thus not under their control (see People v. Daniels, 140 A.D.3d 1083, 1085, 34 N.Y.S.3d 161 [2d Dept. 2016], lv denied 28 N.Y.3d 970, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016]; People v. Bryant, 11 A.D.3d 630, 631, 784 N.Y.S.2d 114 [2d Dept. 2004], lv denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976 [2004]; People v. Baker, 174 A.D.2d 1019, 1020, 572 N.Y.S.2d 181 [4th Dept. 1991], lv denied 78 N.Y.2d 1073, 577 N.Y.S.2d 236, 583 N.E.2d 948 [1991]; see generally People v. Gonzalez, 68 N.Y.2d 424, 427–429, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986]).

The sentence is not unduly harsh or severe.  We agree with defendant, however, and the People correctly concede, that the certificate of conviction incorrectly reflects that defendant was convicted of murder in the second degree pursuant to Penal Law § 125.25 (1), and it must therefore be amended to reflect that he was convicted of murder in the second degree pursuant to section 125.25(3) (see People v. Maloney, 140 A.D.3d 1782, 1783, 32 N.Y.S.3d 410 [4th Dept. 2016]).  We also note that the certificate of conviction incorrectly reflects that defendant was convicted of criminal possession of a weapon in the third degree pursuant to Penal Law § 265.03(3), and it must therefore be amended to reflect that he was convicted of criminal possession of a weapon in the third degree pursuant to section 265.02(1).  Finally, the certificate of conviction incorrectly reflects that defendant was sentenced to 31/313 to 7 years for criminal possession of a weapon in the third degree, and it must therefore be amended to reflect that he was sentenced to 31/212 to 7 years for that conviction (see People v. Armendariz, 156 A.D.3d 1383, 1384, 65 N.Y.S.3d 864 [4th Dept. 2017], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018]).