        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

681
KA 13-02182
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. GUARIGLIA, DEFENDANT-APPELLANT.


NORMAN P. DEEP, ROME, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered March 8, 2012. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the fourth degree
and burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of grand larceny in the fourth degree (Penal
Law § 155.30 [1]) and burglary in the third degree (§ 140.20). The
evidence at trial established that defendant, an employee of a
pizzeria, gave his keys to the pizzeria and the safe inside to a
codefendant who, during the early morning hours, entered the building
and stole approximately $3,000 in cash. The evidence further
established that defendant drove the codefendant to the pizzeria but
stayed in the vehicle while the codefendant went inside, and that the
two men then split the proceeds.

     We reject defendant’s contention that County Court erred in
allowing the codefendant to testify at trial that, when defendant
suggested that they commit the crime, defendant stated that he and his
brother had previously stolen money from another employer in a similar
manner. As the court properly determined, evidence of defendant’s
statement to the codefendant was part of the res gestae, inasmuch as
it showed how defendant planned the crime and persuaded the
codefendant to assist him (see generally People v Owens, 51 AD3d 1369,
1371, lv denied 11 NY3d 740; People v Chavys, 263 AD2d 964, 965, lv
denied 94 NY2d 821). In any event, any error with respect to the
admission of the codefendant’s testimony is harmless (see generally
People v Crimmins, 36 NY2d 230, 241-242).

     Defendant further contends that he was deprived of a fair trial
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                                                         KA 13-02182

because the People failed to disclose fully the benefits that a
prosecution witness received in return for her testimony. The witness
in question is defendant’s former girlfriend, who at the time of trial
had two outstanding warrants from Rome City Court, one for a traffic
ticket and the other for a petit larceny charge. The People disclosed
prior to trial that in return for her testimony the witness was
promised that she would not be taken into custody when she appeared in
court to testify and that she would be allowed to turn herself in on
the warrants. The day after she testified, the witness appeared in
Rome City Court and was released on her own recognizance on both
warrants. Defense counsel later learned that the prosecutor had
called the Judge in City Court and asked that the witness be released
on the warrants. In a subsequent CPL 330.30 motion, defendant
contended that he was entitled to a new trial because, among other
reasons, the prosecutor did not disclose that the witness had been
promised that she would be released on the warrants. In their papers
opposing defendant’s postverdict motion, the People did not controvert
defendant’s assertion that the prosecutor contacted the City Court
Judge to recommend the witness’s release.

     Even assuming, arguendo, that the court should have conducted a
hearing on defendant’s motion to determine whether the prosecutor made
undisclosed promises to the witness before she testified (see CPL
330.40 [2] [f]; see generally People v Nicholson, 222 AD2d 1055, 1056-
1057; People v Tokarski, 178 AD2d 961, 961), we conclude that the
error is harmless beyond a reasonable doubt (see generally Crimmins,
36 NY2d at 237). We note that the witness’s trial testimony was
consistent with a statement she gave to the police and her grand jury
testimony, both of which occurred before the People made any promises
to her. Moreover, the jurors knew that the witness had been promised
that she would not be taken into custody at trial on the warrants, and
it is doubtful that their assessment of her credibility would have
changed if they had been informed that the prosecutor would recommend
that she be released on the warrants once she turned herself in to
City Court.

     Finally, we reject defendant’s remaining contention that he was
impermissibly denied his right to confront the same prosecution
witness, i.e., his former girlfriend, about her theft of an
electronics device from the home of her son’s father during a birthday
party to which she had been invited (see generally People v Rivera, 98
AD3d 529, lv denied 20 NY3d 935; cf. People v Young, 235 AD2d 441,
445-446, lv denied 81 NY2d 895). The court did not allow defense
counsel to cross-examine the witness about the underlying facts of the
crime because the witness, and apparently the court, were under the
misapprehension that the charge was still pending, and thus the court
was concerned that defense counsel’s questions would implicate the
witness’s Fifth Amendment rights. As defense counsel determined after
the witness testified but before the People rested, however, the
witness had pleaded guilty to a lesser offense with respect to the
theft and had already been sentenced by the time she testified at
defendant’s trial. When defense counsel informed the court that the
theft charge was no longer pending, the court ruled that defendant
could serve the witness with a subpoena and then question her in
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                                                         KA 13-02182

detail about the theft. It appears from the motion papers that the
prosecutor knew that the petit larceny charge was no longer pending
and yet was silent when the court precluded defense counsel from
cross-examining the witness due to concerns about her non-existent
Fifth Amendment rights, and the People do not explain the prosecutor’s
conduct in this regard. Nevertheless, because defendant was given the
opportunity to have the witness brought back to the stand for further
examination but declined to do so, it cannot be said that he was
deprived of his right to confront the witness about the petit larceny
charge.




Entered:   July 3, 2014                         Frances E. Cafarell
                                                Clerk of the Court
