PEOPLE v. GILLYARD

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Wayne GILLYARD, Defendant-Appellant.

Decided: February 23, 1999

SULLIVAN, J.P., ELLERIN, WILLIAMS and WALLACH, JJ. Theresa A. Foudy, for Respondent. Amy Donner, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered January 7, 1993, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously affirmed.

 The court properly exercised its discretion in precluding speculative evidence concerning the prosecution witness's purported misidentification of defendant's accomplice since its probative value was substantially outweighed by the danger that it would obscure the issues before the jury (see, People v. Scarola, 71 N.Y.2d 769, 530 N.Y.S.2d 83, 525 N.E.2d 728;  People v. Williams, 251 A.D.2d 93, 674 N.Y.S.2d 646, lv. denied 92 N.Y.2d 883, 678 N.Y.S.2d 30, 700 N.E.2d 568;  People v. Watson, 243 A.D.2d 426, 663 N.Y.S.2d 564, lv. denied 92 N.Y.2d 863, 677 N.Y.S.2d 94, 699 N.E.2d 454), particularly since defendant and the prosecution witness had a long-term prior relationship and defendant's identification was not in issue.   Similarly, the court properly exercised its discretion in precluding evidence pertaining to the alibi of the deceased's common-law husband, whom the prosecution witness first implicated in the murder, since the witness repeatedly admitted his false allegations at trial (see, People v. Taylor, 238 A.D.2d 199, 656 N.Y.S.2d 241, lv. denied 90 N.Y.2d 943, 664 N.Y.S.2d 762, 687 N.E.2d 659).   Defendant has failed to preserve for appellate review the constitutional aspects of these claims (People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333), and we decline to review them in the interest of justice.

 Since defendant never requested an accomplice charge and did not object to the jury instructions provided by the court, his claim that the court erred in failing to instruct the jury that it could determine whether or not the chief prosecution witness was an accomplice has not been preserved for appellate review as a matter of law, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the evidence did not require such an instruction (see, People v. Jones, 73 N.Y.2d 902, 539 N.Y.S.2d 286, 536 N.E.2d 615).

MEMORANDUM DECISION.