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

231
KA 12-00793
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSE MEJIA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 19, 2012. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts), robbery in the first degree, criminal possession of a weapon
in the second degree and criminal possession of stolen property in the
fifth 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, inter alia, two counts of murder in the second
degree (Penal Law § 125.25 [1], [3]) and one count of robbery in the
first degree (§ 160.15 [2]). We reversed defendant’s prior judgment
of conviction on the ground that his statements to the police should
have been suppressed (People v Mejia, 64 AD3d 1144, 1145-1146, lv
denied 13 NY3d 861). On this appeal following the retrial, defendant
contends that Supreme Court erred in admitting in evidence the
codefendant’s testimony from the first trial. We reject defendant’s
contention that the admission of the prior testimony violated his
right of confrontation or CPL 670.10 (1) (see People v Knowles, 79
AD3d 16, 24, lv denied 16 NY3d 896). The codefendant refused to
testify based on his belief that his plea agreement with the People
did not require him to testify twice, and his refusal to testify
constituted incapacity inasmuch as the court threatened to hold the
codefendant in contempt, and indeed did hold him in contempt, for his
refusal to testify (see Knowles, 79 AD3d at 24-25; People v Barber, 2
AD3d 1290, 1291, lv denied 2 NY3d 761). Contrary to defendant’s
further contention, the court did not abuse its discretion in not
allowing the codefendant to be called to the stand and refuse to
testify in front of the jury (see generally People v Thomas, 51 NY2d
466, 472; People v Dixon, 149 AD2d 613, 613, lv denied 76 NY2d 733),
                                 -2-                           231
                                                         KA 12-00793

and in not charging the jury that the witness refused to testify (see
generally People v Tatro, 53 AD3d 781, 786-787, lv denied 11 NY3d 835;
People v Zanghi, 256 AD2d 1120, 1121, lv denied 93 NY2d 881). We have
considered defendant’s remaining contention regarding the admission of
the codefendant’s prior testimony in evidence and conclude that it is
without merit.

     As we held in the prior appeal, the court “properly admitted the
trial testimony of a witness concerning an admission by silence by
defendant” (Mejia, 64 AD3d at 1145). Defendant’s contention that a
proper foundation was not laid for that testimony is not preserved for
our review (see CPL 470.05 [2]), and is without merit in any event
inasmuch as “[t]he record supports the conclusion that defendant heard
another person’s statement accusing him of the crime” (People v Frias,
250 AD2d 495, 496, lv denied 92 NY2d 982). Viewing the evidence in
light of the elements of the crimes as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we reject defendant’s further
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that he was denied a fair trial based on a
comment made by the prosecutor during summation. That comment,
however, was a fair response to defense counsel’s summation (see
People v Ross, 118 AD3d 1413, 1417, lv denied 24 NY3d 964; People v
Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954). In any event, that
single remark was “isolated and not so . . . egregious as to warrant a
reversal” (People v Walker, 259 AD2d 1026, 1027, lv denied 93 NY2d
1029). The sentence is not unduly harsh or severe.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
