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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Gary THIBODEAU, Defendant-Appellant.  (Appeal No. 1.)

Decided: December 30, 1999

PRESENT:  DENMAN, P.J., PINE, HAYES, WISNER and BALIO, JJ. Randi Juda Bianco, Syracuse, for Defendant-Appellant. Donald E. Todd, for Plaintiff-Respondent. Robin A. Forshaw, Brooklyn, for Intervenor-Respondent Attorney General of the State of New York.

In these consolidated appeals, defendant appeals from a judgment convicting him upon a jury verdict of kidnapping in the first degree (Penal Law § 135.25[3] ) and sentencing him to an indeterminate term of imprisonment of 25 years to life (appeal No. 1).   Defendant also appeals from two orders that, following a hearing, denied his motion to vacate that judgment pursuant to CPL 440.10(1)(b), (c), (f), (g) and (h) (appeal Nos. 2 and 3).

Defendant contends that County Court erred in admitting hearsay concerning defendant's criminal propensity;  that the court erred in refusing to vacate the judgment of conviction on the ground that a 13-year-old witness's testimony was incredible as a matter of law;  that defendant was denied his right to be present during a portion of voir dire;  that the presumption of death set forth in the kidnapping statute (Penal Law § 135.25[3] ) is unconstitutional;  that the evidence is legally insufficient to support defendant's conviction;  that defendant was deprived of a fair trial by prosecutorial misconduct;  that the prosecution deliberately withheld Brady material;  that the court's interested witness instruction was unbalanced and improper;  that the judgment of conviction should be vacated due to the “grave risk that an innocent man has been convicted”;  that defendant's conviction is repugnant to the acquittal of codefendant (defendant's brother) following a separate trial;  and that defendant has been denied a fair trial as a result of cumulative error.

 Admission of the testimony of the barmaid concerning defendant's statements to her did not violate the hearsay rule (see, Prince, Richardson on Evidence §§ 8-201, 8-202 [Farrell 11th ed.] ).   The evidence nonetheless falls within the exclusionary rule of People v. Molineux, 168 N.Y. 264, 291-294, 61 N.E. 286.   Although the evidence tended to establish the identity of defendant and his brother as the kidnappers, as well as their complicity and intent, the slight probative value of the evidence on those issues was outweighed by its prejudicial impact (see, People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735).   There is a danger here that the jury viewed the evidence as establishing defendant's criminal bent or character as an abductor of young women (see, People v. Hudy, 73 N.Y.2d 40, 54-55, 538 N.Y.S.2d 197, 535 N.E.2d 250;  People v. Crandall, 67 N.Y.2d 111, 500 N.Y.S.2d 635, 491 N.E.2d 1092).   We nonetheless conclude that the admission of the evidence, together with the failure of the People to give notice of their intention to use it (see generally, People v. Ventimiglia, 52 N.Y.2d 350, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59), is harmless error.   There is overwhelming evidence of defendant's guilt and no significant probability that the jury would have acquitted defendant but for the error (see, People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 The court did not err in refusing to determine that the testimony of a 13-year-old witness was incredible as a matter of law and in refusing to vacate the judgment of conviction on that basis.   The fact that the testimony of the witness was contradicted by her later statements and testimony did not render it incredible as a matter of law (see, People v. Shedrick, 104 A.D.2d 263, 274, 482 N.Y.S.2d 939, affd. 66 N.Y.2d 1015, 499 N.Y.S.2d 388, 489 N.E.2d 1290, rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234).   In order to constitute newly discovered evidence, such evidence must not merely impeach or contradict the former evidence (see, People v. Salemi, 309 N.Y. 208, 215-216, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827).   The rule recognizes that recantation evidence is inherently unreliable (see, People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, rearg. denied 218 N.Y. 702, 113 N.E. 1064;  People v. Jackson, 238 A.D.2d 877, 879, 661 N.Y.S.2d 110, lv. denied 90 N.Y.2d 859, 661 N.Y.S.2d 186, 683 N.E.2d 1060) and insufficient alone to warrant vacating a judgment of conviction (see, People v. Legette, 153 A.D.2d 760, 545 N.Y.S.2d 296, lv. denied 74 N.Y.2d 949, 550 N.Y.S.2d 284, 549 N.E.2d 486).   In any event, the witness's recantation is of no consequence;  several of defendant's other neighbors likewise observed defendant's brother's van at defendant's house on the morning of the crime.

 Reversal is not required as a result of the denial of defendant's right to be present during a portion of voir dire.   Where it appears from the record that a prospective juror was excused for cause, the alleged violation of defendant's right to be present will be deemed harmless error because the circumstances would render defendant's input superfluous (see, People v. Maher, 89 N.Y.2d 318, 325, 653 N.Y.S.2d 79, 675 N.E.2d 833;  People v. Hutton, 88 N.Y.2d 363, 378, 645 N.Y.S.2d 759, 668 N.E.2d 879;  People v. Roman, 88 N.Y.2d 18, 26-28, 643 N.Y.S.2d 10, 665 N.E.2d 1050, rearg. denied 88 N.Y.2d 920, 646 N.Y.S.2d 988, 670 N.E.2d 229).   Here, the prospective juror disqualified himself by informing the court that he was unable to consider the evidence impartially and in particular would be unable to put aside his personal relationship with a sworn juror in the event that they disagreed during deliberations.   The fact that defense counsel acquiesced in that decision does not warrant the conclusion that the juror was excused based on defense counsel's “ ‘discretionary choice to excuse’ ” that juror (People v. Maher, supra, at 325, 653 N.Y.S.2d 79, 675 N.E.2d 833).   Rather, defense counsel was merely indicating that he had no objection to the court's decision to excuse the prospective juror for cause (see, People v. Hutton, supra, at 378, 645 N.Y.S.2d 759, 668 N.E.2d 879).

 There is no merit to defendant's challenge to the constitutionality of the presumption of death contained in the kidnapping statute (see, Penal Law § 135.25[3] ).   The statute satisfies the first prong of the constitutional test for vagueness, which requires that the statute sufficiently notify a person of ordinary intelligence of the conduct that is prohibited (see, People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355;  People v. Cruz, 48 N.Y.2d 419, 423-424, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254;  People v. Ehinger, 152 A.D.2d 97, 100, 547 N.Y.S.2d 302, lv. denied 75 N.Y.2d 812, 552 N.Y.S.2d 562, 551 N.E.2d 1240).   Nor is there any merit to defendant's challenge under the second prong of the test for vagueness, which invalidates a criminal statute where it fails to establish “ ‘boundaries sufficiently distinct’ ” for police, prosecutors, Judges, and juries to administer the law fairly (People v. Cruz, supra, at 424, 423 N.Y.S.2d 625, 399 N.E.2d 513, quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877), and instead allows for unbridled prosecutorial discretion or arbitrary prosecutions (see generally, Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903;  People v. Bright, supra, at 382-383, 526 N.Y.S.2d 66, 520 N.E.2d 1355).   The test is more stringent under the N.Y. Constitution than under the U.S. Constitution because it requires “ ‘a reasonably high degree of probability’ that the presumed fact follows from those proved directly” (People v. Leyva, 38 N.Y.2d 160, 166, 379 N.Y.S.2d 30, 341 N.E.2d 546, quoting People v. McCaleb, 25 N.Y.2d 394, 404, 306 N.Y.S.2d 889, 255 N.E.2d 136).   The statutory presumption involved here is rational under the New York test.   Contrary to defendant's suggestion, the statute does not predicate conviction upon the mere fact of a person's disappearance.   The statutory presumption of death operates only in those circumstances in which the People establish that the victim has been abducted and subsequently not seen or heard from even though it is “extremely likely” that the victim otherwise would have visited or communicated with family or friends (Penal Law § 135.25[3] ).   The statute further requires proof that the victim's family, friends, or other contacts have received “no reliable information * * * persuasively indicating that” the victim remains alive (Penal Law § 135.25[3] ).   Those are significant limitations upon prosecutorial discretion (see, People v. Cruz, supra, at 426-427, 423 N.Y.S.2d 625, 399 N.E.2d 513) and provide strong protection against arbitrary enforcement (see, People v. Bright, supra, at 379, 382-383, 526 N.Y.S.2d 66, 520 N.E.2d 1355).

 The evidence is legally sufficient to support defendant's conviction.   Insofar as preserved for our review (see, People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919), defendant's contention is that the evidence is legally insufficient to establish that the victim was abducted and that defendant was one of the abductors.   We note that this was a mixed direct and circumstantial evidence case and not, as defendant contends, wholly circumstantial.   There was direct eyewitness testimony establishing that the victim was abducted from a convenience store.   The fact that defendant was one of the abductors was established by his admissions to two jailhouse informants.   Defendant's admissions were corroborated by proof establishing the presence of defendant's brother and his van at the store at the time of the kidnapping;  by descriptions of the abductors;  and by evidence placing defendant and his brother together at various times that morning and the night before, all in contravention of their alibi evidence.   There is a valid line of reasoning and permissible inferences that could lead a reasonable person to the conclusion reached by the jury on the basis of the evidence at trial, viewed in the light most favorable to the People (see, People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Insofar as defendant's contentions concerning legal insufficiency are not preserved for our review, 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] ).

Defendant was not denied a fair trial by prosecutorial misconduct (see, People v. Olsowske, 247 A.D.2d 856, 668 N.Y.S.2d 518, lv. denied 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968;  People v. Church, 244 A.D.2d 953, 665 N.Y.S.2d 174;  People v. Edwards, 167 A.D.2d 864, 561 N.Y.S.2d 964, lv. denied 77 N.Y.2d 877, 568 N.Y.S.2d 920, 571 N.E.2d 90).   Defendant has failed to establish a Brady violation with respect to the withholding of the victim's diaries or of the prosecution's alleged cooperation agreement with the jailhouse informant.   The interested witness instruction was not erroneous.   We have considered defendant's remaining contentions and conclude that they are without merit.

Judgment unanimously affirmed.


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