PEOPLE v. GILES (2020)

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered July 31, 2013, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 25 years to life, unanimously affirmed.

The challenged portions of the People's summation generally constituted fair comment on the evidence, reasonable inferences to be drawn therefrom, and permissible responses to defense arguments.  To the extent there were improprieties, there was nothing so egregious as to require reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).  In any event, any error was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ), which included the testimony of multiple witnesses and defendant's valid, videotaped confession.

We do not find that there was any error warranting reversal when, without objection and outside the jury's presence, the court warned an uncooperative witness, whose trial testimony contradicted his grand jury testimony, that he could be prosecuted for perjury.  The court identified the conflict in the witness's sworn statements, directed him to tell the truth, and correctly stated the possible legal consequences involved (see Penal Law § 210.20 [inconsistent sworn statements as perjury] ).  We do not find that this action compromised the court's neutrality (see generally People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467 [1979];  People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978] ).

The court correctly permitted the People to impeach this witness by means of his grand jury testimony, because the requirements of CPL 60.35 were met.  Regardless of whether this witness's grand jury testimony was admissible for impeachment purposes, the court providently exercised its discretion in admitting it as evidence in chief, under the doctrine of past recollection recorded (see People v. Tapia, 33 N.Y.3d 257, 264, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019] ).  The reluctant witness's ultimate trial testimony unequivocally satisfied all of the requirements for admission on that basis.  The record fails to support defendant's assertion that the witness was improperly induced or coached into giving testimony that satisfied the foundational requirements for receiving his grand jury testimony as past recollection recorded.

In any event, any error with respect to the court's conduct or rulings regarding the reluctant witness was harmless.  This was only one of several eyewitnesses, and, as noted, the evidence of defendant's guilt was overwhelming.

We perceive no basis for reducing the sentence.