PEOPLE v. BYRON (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered October 26, 2005, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his challenges to a witness's testimony indicating that the witness feared the defendant and his contention that the trial court's curative instructions regarding the limited purpose of testimony from such witness regarding “alleged drug dealings” improperly referenced his character (see CPL 470.05[2]; People v. Wright, 62 A.D.3d 916, 878 N.Y.S.2d 788; People v. Billups, 41 A.D.3d 492, 835 N.Y.S.2d 909). In any event, his contentions are without merit. The witness's statements were relevant as background material to explain why the witness did not initially speak with the police (see People v. Rock, 65 A.D.3d 558, 882 N.Y.S.2d 907), and the challenged curative instruction did not improperly reference the defendant's character (see People v. Potter, 30 A.D.3d 313, 818 N.Y.S.2d 54).

The defendant also failed to preserve for appellate review his contentions that a statement by a witness that the victim had told the witness that the defendant and two others had shown the victim a pistol was inadmissible hearsay and that the cumulative effect of various alleged errors improperly portrayed him as possessing a criminal propensity (see CPL 470.05 [2]; People v. Billups, 41 A.D.3d 492, 835 N.Y.S.2d 909). In any event, any errors were harmless as there was overwhelming evidence of the defendant's guilt and no significant probability that the alleged errors contributed to his conviction (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Thompson, 54 A.D.3d 975, 863 N.Y.S.2d 824).

The defendants' arguments, raised in his supplemental pro se brief, that he was deprived of a fair trial and that his Sixth Amendment right to confrontation was violated by references in the prosecutor's opening statement and during a police detective's testimony to a witness who was not produced at trial, are unpreserved for appellate review (see CPL 470.05[2]; People v. Pierre, 35 A.D.3d 893, 828 N.Y.S.2d 121; People v. Thompson, 276 A.D.2d 811, 716 N.Y.S.2d 397; People v. Seabrooks, 244 A.D.2d 514, 664 N.Y.S.2d 105). In any event, the references do not require reversal. When the prosecution fails to produce a witness referred to in an opening statement, “the general rule is that, absent bad faith or undue prejudice, a trial will not be undone” (People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61, cert. denied 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300; see People v. Pierre, 35 A.D.3d at 893, 828 N.Y.S.2d 121). Here, there is no evidence that the prosecution acted in bad faith in failing to produce the witness and, under the circumstances, the defendant was not unduly prejudiced (see People v. Pierre, 35 A.D.3d at 893, 828 N.Y.S.2d 121; People v. Thompson, 276 A.D.2d at 811, 716 N.Y.S.2d 397; People v. Seabrooks, 244 A.D.2d at 514, 664 N.Y.S.2d 105).