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

560
KA 11-01613
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMELL R. MCCULLOUGH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered July 29, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
robbery in the first degree, robbery in the second degree and assault
in the second 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 burglary in the first degree (Penal Law §
140.30 [4]), robbery in the first degree (§ 160.15 [4]), robbery in
the second degree (§ 160.10 [1]), and assault in the second degree (§
120.05 [2]). The conviction arises out of an incident in which
defendant and two codefendants broke into an apartment and stole money
and property from a woman (hereafter, robbery victim) inside. In
addition, a codefendant used a shotgun to shoot two men—only one of
whom (hereafter, shooting victim) testified against defendant—as the
men fled after coming to the door of the apartment during the robbery.
Defendant was convicted at his third trial following two prior trials
that resulted in hung juries.

     Contrary to defendant’s contention, Supreme Court did not err in
admitting the robbery victim’s testimony from his second trial in
evidence at the third trial. The People established that they
exercised the required due diligence in attempting to secure the
robbery victim’s appearance at the third trial but could not locate
her (see CPL 670.10 [1]; People v Arroyo, 54 NY2d 567, 571-574, cert
denied 456 US 979; People v DeJesus, 110 AD3d 1480, 1481, lv denied 22
NY3d 1155; People v Koberstein, 261 AD2d 849, 849-850, lv denied 94
NY2d 798). Moreover, the admission of her prior testimony did not
violate defendant’s right of confrontation because he “had a full
                                 -2-                           560
                                                         KA 11-01613

opportunity to cross-examine [her] at his two prior trials” (People v
Biggs, 52 AD3d 620, 620, lv denied 11 NY3d 785, cert denied 555 US
1179; see People v Mejia, 126 AD3d 1364, 1365; cf. People v Simmons,
36 NY2d 126, 129-131).

     Defendant further contends that the People violated their
discovery, Brady, and Rosario obligations by failing to disclose in a
timely manner the existence of two pending criminal actions against
the shooting victim (see CPL 240.45 [1] [c]), as well as by failing to
turn over an accusatory instrument containing statements made by the
shooting victim in connection with one of the pending actions (see CPL
240.45 [1] [a]). Defendant failed to preserve his challenge to the
timing of the disclosure of the pending criminal actions (see
generally People v Kessler, 122 AD3d 1402, 1404), and he also failed
to preserve for our review his contention that a Brady violation
occurred (see generally People v Caswell, 56 AD3d 1300, 1303, lv
denied 11 NY3d 923, reconsideration denied 12 NY3d 781). 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]).
Contrary to defendant’s contention, the failure to disclose the
accusatory instrument did not violate CPL 240.45 (1) (a) or the
Rosario rule because the shooting victim’s statements therein did not
relate to the subject matter of his testimony (see CPL 240.45 [1] [a];
People v Perez, 65 NY2d 154, 158-159; People v Matos, 158 AD2d 959,
959, lv denied 75 NY2d 968), notwithstanding that the prosecutor asked
the shooting victim about his pending criminal actions on direct
examination “to blunt the effect of anticipated impeachment” (People v
Harrell, 251 AD2d 240, 241, lv denied 92 NY2d 925).

     We reject defendant’s contention that the court abused its
discretion in refusing to allow him to admit in evidence the shooting
victim’s alleged prior inconsistent statements contained in the
accusatory instrument, which defense counsel obtained after the
shooting victim had already testified. Defendant failed to lay a
proper foundation for the admission of the statements through a police
witness (see People v Fiedorczyk, 159 AD2d 585, 586-587, lv denied 76
NY2d 788; see generally People v Duncan, 46 NY2d 74, 80-81, rearg
denied 46 NY2d 940, cert denied 442 US 910, rearg dismissed 56 NY2d
646; People v Owens, 70 AD3d 1469, 1470, lv denied 14 NY3d 890).
Furthermore, defendant did not preserve his contention that he should
have been afforded an opportunity to recall the shooting victim to
question him about the statements, and we decline to exercise our
power to review it as a matter of discretion in the interest of
justice.

     Defendant failed to preserve for our review his contention that,
in sentencing him, the court penalized him for exercising the right to
a jury trial, inasmuch as he failed to raise that contention at
sentencing (see People v Motzer, 96 AD3d 1635, 1636, lv denied 19 NY3d
1104). In any event, we conclude that the court “did not
impermissibly punish [defendant] for exercising his right to proceed
to trial by imposing a sentence of 15 years[’] imprisonment after he
rejected a plea offer of five years” (People v Melendez, 71 AD3d 1166,
                                 -3-                           560
                                                         KA 11-01613

1167, lv denied 15 NY3d 753; see People v Pena, 50 NY2d 400, 411-412,
cert denied 449 US 1087). Finally, the sentence is not unduly harsh
or severe.




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
