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

1127
KA 10-00816
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WELDON YOUNG, DEFENDANT-APPELLANT.


WAYNE C. FELLE, P.C., WILLIAMSVILLE (WAYNE C. FELLE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered February 19, 2010. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]). Contrary to defendant’s contention, Supreme Court
properly determined, following a Cardona hearing (see People v
Cardona, 41 NY2d 333), that a prosecution witness was not an agent of
the prosecution when he obtained incriminating information from
defendant with respect to the victim’s death. Although the witness
had testified in three prior trials after advising the prosecution,
while he was incarcerated, that he had information about those
respective crimes (see id. at 335), the record supports the court’s
determination that the prosecution did not seek information from the
witness, but instead passively received the information the day before
the trial began (see People v Davis, 38 AD3d 1170, 1171, lv denied 9
NY3d 842, cert denied 552 US 1065; People v Keith, 23 AD3d 1133, 1134,
lv denied 6 NY3d 815). We reject defendant’s further contention that
the prosecution suborned perjury with respect to the testimony of that
witness (see generally People v Casillas, 289 AD2d 1063, 1064, lv
denied 97 NY2d 752). Although we agree with defendant that the
credibility of the witness was challenged with taped telephone calls
from the witness to an acquaintance of the victim that were admitted
in evidence during defendant’s cross-examination of the witness, we
nevertheless conclude that the record does not support a determination
that the People knowingly presented false testimony (see generally
People v Dwyer, 234 AD2d 942, 943). Rather, the credibility of the
                                 -2-                          1127
                                                         KA 10-00816

witness was properly an issue for the jury, which had the opportunity
to hear his testimony and the taped telephone calls (see generally
People v Bleakley, 69 NY2d 490, 495).

     By failing to object during summation, defendant failed to
preserve for our review his further contention that the prosecutor
committed reversible error by vouching for the credibility of the
witness during summation (see CPL 470.05 [2]; People v Hill, 82 AD3d
1715, 1715, lv denied 17 NY3d 806). In any event, we conclude that
the prosecutor’s remarks were a fair response to defendant’s
summation, which attacked the credibility of the witness (see People v
Foster, 59 AD3d 1008, 1009, lv denied 12 NY3d 816), and a fair comment
on the evidence (see Hill, 82 AD3d at 1715).




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
