The People of the State of New York, Respondent, v. Charles Santana, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Charles Santana, Defendant–Appellant.

1152 3

Decided: January 21, 2014

Tom, J.P., Saxe, Moskowitz, Gische, Clark, JJ. Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Seth Rosenbloom of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.

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Judgment, Supreme Court, Bronx County (Ann M. Donnelly, J.), rendered June 25, 2010, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 20 years, unanimously affirmed.

Defendant did not preserve his present challenges to a detective's testimony concerning statements made by a nontestifying declarant, and we decline to review them in the interest of justice.   First, defendant acquiesced when it became clear that, despite detailed warnings by the court and prosecutor, the jointly tried codefendant was opening the door to this testimony.   To the extent that defendant ultimately objected to the prosecutor's redirect examination concerning the declarant, defendant again acquiesced when the court and prosecutor fashioned a remedy that limited this testimony.   Defendant never gave the court any clear indication that this relief was inadequate.   In any event, any specific objection actually made by defendant was grounded in state evidentiary law, and thus failed to preserve a Confrontation Clause claim (see People v. Kello, 96 N.Y.2d 740, 743–744 [2001];  People v. Maher, 89 N.Y.2d 456, 462–463 [1997] ).   We also note that while defendant emphasizes that any door-opening was done not by him but by the codefendant, defendant never moved, before or during trial, for a severance on the ground that he might be prejudiced by his codefendant's strategy.

As an alternative holding, we reject, on the merits, defendant's Confrontation Clause and hearsay arguments concerning the challenged testimony.   The detective's testimony was admissible for the legitimate nonhearsay purposes of explaining the police investigation in the context of issues raised at trial (see Tennessee v. Street, 471 U.S. 409 [1985];  People v. Tosca, 98 N.Y.2d 660 [2002];  People v. Rivera, 96 N.Y.2d 749 [2001] ), and for the related reason that the codefendant unequivocally opened the door to such testimony (see People v. Reid, 19 NY3d 382 [2012] ).   In any event, any error in receiving the challenged testimony was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230 [1975] ).

Defendant's challenges to the prosecutor's summation and to the court's limitations on cross-examination, including his constitutional claims, are likewise unpreserved, and defendant's arguments on the subject of preservation are without merit.   We decline to review these challenges in the interest of justice.   As an alternative holding, we reject them on the merits.   We likewise find that any errors regarding these matters were

harmless.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK