State of New York                                             MEMORANDUM
Court of Appeals                                         This memorandum is uncorrected and subject to
                                                       revision before publication in the New York Reports.




 No. 66 SSM 5
 The People &c.,
         Respondent,
      v.
 Darryl Hemphill,
         Appellant.




 Submitted by Claudia Trupp, for appellant.
 Submitted by Noah J. Chamoy, for respondent.




 MEMORANDUM:

       The order of the Appellate Division should be affirmed.

       Defendant appeals from the judgment of Supreme Court, Bronx County convicting

 him after trial of murder in the second degree and sentencing him to twenty-five years to

 life in prison. The defense was third-party guilt. On appeal, defendant renews his

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challenges to the sufficiency of the evidence, the integrity of the grand jury proceedings

and various trial rulings.

       While there was evidence of third-party culpability, a rational jury nevertheless

could have concluded that defendant was guilty (see People v Danielson, 9 NY3d 342, 349

[2007]). The jury was free to reject defendant’s claims about the witnesses’ initial

identifications of someone else as the shooter (cf. Ando v Woodberry, 8 NY2d 165, 171

[1960]). Contrary to defendant’s claim that the indictment should be dismissed based on

the prosecutor’s failure to alert the grand jury to exculpatory evidence that implicated

another, the People were not obligated to present evidence that someone else was initially

identified as the shooter (see People v Mitchell, 82 NY2d 509 [1993]; People v Lancaster,

69 NY2d 20, 25-26 [1986]).

       With respect to the other claims raised by defendant, we note that trial courts possess

broad discretion to make evidentiary rulings and control the course of cross-examination

(see People v Rouse, 34 NY3d 269, 278-279 [2019]; People v Jones, 24 NY3d 623, 629

[2014]). Here, the trial court did not abuse its discretion by admitting evidence that the

allegedly culpable third party pled guilty to possessing a firearm other than the murder

weapon. Nor did the court abuse its discretion in its treatment of a controversy concerning

counsel’s attempt to impeach a witness with her prior grand jury testimony. Notably,

counsel failed to request that the witness be recalled for questioning relating to the

particular appearance on which counsel relied. Similarly, the trial court acted well within

its discretion in admitting photographs of the victim’s body as not simply introduced to

inflame the jury (see People v Stevens, 76 NY2d 833, 835 [1990]), and in determining that

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their relevance was not outweighed by danger of undue prejudice to defendant (see People

v Primo, 96 NY2d 351, 355 [2001]). The trial court’s other evidentiary rulings were

similarly within the court’s discretion, as was the court’s denial of defense counsel’s same-

day oral request to adjourn sentencing to investigate grounds for a possible motion to set

aside the verdict (cf. People v Spears, 64 NY2d 698, 699-700 [1984]).

       Defendant’s remaining contentions are unpreserved or without merit.




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People v Darryl Hemphill

SSM No. 5




FAHEY, J. (dissenting):

       I would reverse. The trial court abused its discretion in denying defense counsel’s

request to call as a witness the court reporter in a 2007 grand jury proceeding.



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                                              I.

       The underlying events began with a street fight in March 2016 between two men,

including trial witness Ronnell Gilliam, on the one side, and a group of three men and two

women, including trial witness Brenda Gonzalez, on the other. Gilliam’s accomplice was

described by eyewitnesses as a thin black man wearing a blue shirt or sweater. After the

fight broke up, a slim black man in a blue top returned to (or arrived on) the scene with a

gun and opened fire. The gunfire killed a two-year-old passenger in a minivan that

happened to be in the vicinity.

       An eyewitness named Michelle Gist, who had observed the initial fight, but not the

shooting, told the police that Gilliam and his best friend Nicholas Morris had been at the

scene. Morris was arrested, and ammunition consistent with the type of bullets used in the

shooting was found at his apartment. Gonzalez and two of her companions identified

Morris in a lineup as the shooter. Meanwhile, at Gilliam’s apartment, the police had found

a blue sweater inside a plastic bag.

       Gilliam turned himself in and spoke with the police. He identified Morris as the

shooter. Later, Gilliam returned to the police station, recanted his identification of Morris,

and now stated that the shooter had been defendant Darryl Hemphill. During this second

interview, Gilliam received a phone call from Morris.

       Grand juries were convened in 2006 and 2007, at which witnesses identified Morris

as the shooter. At the 2006 grand jury proceedings, held on the basis of the evidence

against Morris, Gonzalez did not identify Morris by name as the shooter. At the 2007

grand jury proceedings, Gonzalez expressly identified Morris by name as the shooter.

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       Morris went to trial for the killing. After a mistrial and a negative DNA swab of the

sweater found in Gilliam’s home, the People decided to abandon prosecution of Morris.

Then, after the DNA on the sweater was found to match Hemphill instead, defendant was

arrested.

       At the second trial, Gilliam testified, pursuant to a cooperation agreement, that

defendant had been the shooter. Gist identified defendant as the thin black man present at

the initial fight, but she was impeached with her prior statements to the police that Morris,

not Hemphill, had been at the scene. Gonzalez and the others in her party described the

shooter as a tall, thin black man in a blue sweater or shirt, without identifying Hemphill

specifically.

       Defense counsel cross-examined Gonzalez by, among other things, reading her

2007 grand jury testimony, in which she had testified that there was no doubt in her mind

that she had seen Morris fire the shot that killed the child. Counsel momentarily confused

the dates of the two grand jury proceedings and asked Gonzalez to recall her “2006” grand

jury testimony, in which she had not identified Morris by name as the shooter. Gonzalez

denied giving the testimony that defense counsel read to the jury. In addition, defense

counsel put broader questions to Gonzalez, such as “Did you ever tell . . . any district

attorney that there was no doubt in your mind that Nicholas Morris fired that shot . . .?”, to

which Gonzalez untruthfully replied, “No I didn’t.”

       The trial court then permitted the People to call the 2006 grand jury court reporter

to testify that Gonzalez in 2006 had not been asked the questions and had not given the

answers that defense counsel had read in court (when reading from Gonzalez’s 2007 grand

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jury testimony). In response, defense counsel sought to introduce testimony from the 2007

court reporter that the questions had in fact been asked and answered in 2007. The trial

court did not grant counsel’s request, and instead suggested that defense counsel recall

Gonzalez, question her about her 2007 testimony, and then call the 2007 court reporter if

necessary. Defense counsel declined this alternative to the request.

       On summation, the prosecutor argued that defense counsel had “tried to get Brenda

Gonzalez to admit she said things before the grand jury in 2006 she never said” and that

the People had called the reporter “to prevent facts from being manipulated.” During

deliberations, the jury repeatedly asked to rehear the testimony from the 2006 grand jury

reporter. At this point, the parties discussed the fact that the trial court had precluded the

defense from calling the 2007 grand jury court reporter, and the trial court told defense

counsel, “[o]kay. I understand your position. You have an exception.”

                                              II.

       Defendant preserved for our review the issue whether counsel should have been

permitted simply to call the reporter (see CPL 470.05 [2] [“a party who without success

has . . . sought or requested a particular ruling or instruction, is deemed to have thereby

protested the court’s ultimate disposition of the matter or failure to rule or instruct

accordingly sufficiently to raise a question of law with respect to such disposition or

failure”]). Indeed, the majority agrees. While it is true, as the majority notes, that “counsel

failed to request that [Gonzalez] be recalled for questioning” on her 2007 grand jury

appearance (majority op at 2), the majority does not assert that defendant failed to preserve

his challenge to the trial court’s ruling on calling the court reporter.

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                                             III.

       The trial court committed reversible error and denied defendant a fair trial by

refusing to allow defense counsel to call the 2007 grand jury court reporter, without

recalling Gonzalez.    This would have enabled the defense to impeach Gonzalez by

confirming that she had in fact identified Morris, by name, as the shooter in 2007. Notably,

Gonzalez was asked whether she had ever told a district attorney that Morris was the

shooter, and denied doing do, even though she had testified as much in 2007. The trial

court issued its ruling despite the fact that the People were permitted to call the 2006 court

reporter to testify, in effect, that defense counsel’s questioning was disingenuous.

       The trial court’s refusal to allow defense counsel to correct the record by calling the

2007 court reporter was prejudicial. The ruling left the jury with the impression that the

defense had fabricated grand jury testimony, even though it was Gonzalez whose testimony

was false. The jury was prevented from learning that Gonzalez had identified Morris as

the shooter, by name and under oath, at the 2007 grand jury proceeding. This was error.

Although “trial courts have broad discretion to keep the proceedings within manageable

limits and to curtail exploration of collateral matters,” evidence that tends to show that a

witness is fabricating her testimony “is never collateral and may not be excluded on that

ground” (People v Hudy, 73 NY2d 40, 56 [1988]). Put another way, “there is no risk of

diversionary excursions into collateral matters where ‘[t]he substance of th[e] contradiction

goes to a material, core issue in the case’ ” (People v Bradley, 99 AD3d 934, 937 [2d Dept

2012], quoting People v Cade, 73 NY2d 904, 905 [1989]).

       For these reasons, I dissent.

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*    *    *    *     *    *    *     *    *    *    *     *    *    *     *    *    *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a
memorandum. Chief Judge DiFiore and Judges Rivera, Stein, Garcia, Wilson and Feinman
concur. Judge Fahey dissents in an opinion.


Decided June 25, 2020




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