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

1425
KA 11-00012
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHNNY ROGERS, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 19, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that the 19-year preindictment delay violated his
right to a speedy trial and his due process right to prompt
prosecution. We reject that contention. In examining the Taranovich
factors (People v Taranovich, 37 NY2d 442, 445), we conclude that,
although the 19-year preindictment delay was substantial, the nature
of the underlying charge was serious, and defendant remained at
liberty until he was indicted. Moreover, the People met their burden
of establishing good cause for the delay (see People v Decker, 13 NY3d
12, 14-16; People v Chatt, 77 AD3d 1285, 1285, lv denied 17 NY3d 793).
Indeed, they established that there was insufficient evidence to
charge defendant shortly after the crimes occurred, and it was not
until the statements of three witnesses were obtained and DNA testing
was completed that the People brought the charges against defendant.
The People’s decision to bring the charges against defendant many
years later “was not an abuse of the significant amount of discretion
that the People must of necessity have, and there is no indication
that the decision was made in anything other than good faith” (Decker,
13 NY3d at 15). We further conclude that, while the delay may have
caused some degree of prejudice to defendant, “there is no indication
that the defense was significantly impaired by the delay” (id.).
Contrary to defendant’s further contention, there was no need for a
Singer hearing (People v Singer, 44 NY2d 241, 255) because no issue of
fact exists regarding the cause of the delay and because the record
provided County Court with a sufficient basis to determine whether the
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delay was justified (see People v Gathers, 65 AD3d 704, 704, lv denied
13 NY3d 859; cf. People v Watts, 78 AD2d 1008, 1009).

     We reject defendant’s contention that the court abused its
discretion in denying his request for an adjournment after the People
turned over alleged Brady material less than a week before the trial.
“ ‘[T]he court’s exercise of discretion in denying a request for an
adjournment will not be overturned absent a showing of prejudice’ ”
(People v Peterkin, 81 AD3d 1358, 1360, lv denied 17 NY3d 799). Even
assuming, arguendo, that the interdepartmental memo of the police
department was Brady material, we conclude that defendant had a
meaningful opportunity to use it at trial and thus was not prejudiced
by the denial of his request for an adjournment.

     Defendant next contends that the court erred in denying his
challenges for cause to two prospective jurors. Initially, we note
that, contrary to the People’s contention, defendant exhausted all of
his peremptory challenges, and thus the issue is properly before us
(see CPL 270.20 [2]). On the merits, however, we agree with the
People that the court properly denied the challenges. It is well
settled that “a prospective juror whose statements raise a serious
doubt regarding the ability to be impartial must be excused unless the
prospective juror states unequivocally on the record that he or she
can be fair and impartial” (People v Chambers, 97 NY2d 417, 419; see
People v Harris, 19 NY3d 679, 685). Here, while the two prospective
jurors stated that they knew victims of domestic violence, nothing
said by them on that issue raised a serious doubt as to their ability
to render an impartial verdict (see People v Turner, 6 AD3d 1190,
1190, lv denied 3 NY3d 649). Their responses were unequivocal despite
their use of the word “think” (see People v Odum, 67 AD3d 1465, 1465,
lv denied 14 NY3d 804, 15 NY3d 755, cert denied ___ US ___, 131 S Ct
326). The second prospective juror at issue also made statements
indicating that he would find a police officer more credible than
someone else. Thus, in order to avoid excusing that juror, it was
incumbent upon the court to elicit an unequivocal assurance of the
prospective juror’s ability to be impartial (see People v Johnson, 17
NY3d 752, 753), which the court here did. The court asked the
prospective juror at issue if he would follow an instruction that he
was not to give any greater weight to a police officer’s testimony,
and the prospective juror responded, “yes. If it was an order, yes, I
would.”

     Contrary to defendant’s further contention, the court properly
admitted testimony regarding prior incidents of domestic violence by
defendant against the victim, i.e., his wife, because it was probative
of defendant’s motive, intent, and identity (see People v Kelly, 71
AD3d 1520, 1521, lv denied 15 NY3d 775; People v Colbert, 60 AD3d
1209, 1212; People v Parsons, 30 AD3d 1071, 1073, lv denied 7 NY3d
816). The evidence of domestic violence perpetrated by defendant
against a witness was also properly admitted because it was
inextricably interwoven with that witness’s testimony (see generally
People v Ely, 68 NY2d 520, 529). Additionally, contrary to
defendant’s contention, the court weighed the probative value of the
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domestic violence evidence against its prejudicial impact (see People
v DiTucci, 81 AD3d 1249, 1250, lv denied 17 NY3d 794), and the
prejudicial impact of that evidence was minimized by the court’s
limiting instructions (see People v Carson, 4 AD3d 805, 806, lv denied
2 NY3d 797).

     Defendant failed to preserve for our review his contention that
hearsay testimony from a witness regarding the victim’s pregnancy
violated his right of confrontation (see People v Rivera, 33 AD3d 450,
450-451, lv denied 7 NY3d 928) and, in any event, that contention
lacks merit inasmuch as defendant opened the door to such testimony
(see People v Reid, 19 NY3d 382, 388). Contrary to defendant’s
contention, his right to remain silent was not violated by the
testimony of a police officer that defendant waived his Miranda
warnings and provided an oral statement, but refused to provide an
affidavit (see People v Hendricks, 90 NY2d 956, 957; People v Beecham,
74 AD3d 1216, 1217, lv denied 15 NY3d 918, reconsideration denied 16
NY3d 856). Defendant’s further contention that the testimony of
another police officer also violated his right to remain silent is not
preserved for our review (see People v Larsen, 145 AD2d 976, 977, lv
denied 73 NY2d 1017), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]).

     Defendant next contends that the court erred in refusing to admit
in evidence a prior inconsistent statement of a prosecution witness.
The contents of that affidavit were essentially put before the jury
during cross-examination of the witness, and the decision whether to
admit the affidavit in evidence was therefore within the court’s
discretion (see People v Piazza, 48 NY2d 151, 164-165). We perceive
no abuse of discretion in the court’s refusal to do so (see People v
Lewis, 277 AD2d 1022, 1022-1023, lv denied 96 NY2d 802).

     Defendant also contends that certain conduct by the prosecutor
denied him a fair trial. We agree with defendant that it was improper
for the prosecutor to imply during the testimony of a witness that
defendant had an obligation to call another witness (see People v
Grice, 100 AD2d 419, 422), but we conclude that the court’s curative
instruction was sufficient to alleviate any prejudice to defendant
(see People v Smith, 88 AD3d 487, 488; People v Peterson, 71 AD3d
1419, 1420, lv denied 14 NY3d 891). Additionally, even assuming,
arguendo, that certain comments by the prosecutor on summation
impermissibly shifted the burden of proof (see People v Grant, 94 AD3d
1139, 1141), we conclude that the comments were not so pervasive or
egregious as to deny defendant a fair trial (see People v Caldwell, 98
AD3d 1272, 1273). Defendant’s further contention that the prosecutor
failed to correct allegedly false testimony by one of the expert
witnesses is not preserved for our review (see People v Golson, 93
AD3d 1218, 1219-1220, lv denied 19 NY3d 864), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     We reject defendant’s contention that the evidence is legally
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                                                         KA 11-00012

insufficient to establish that he was the perpetrator (see generally
People v Bleakley, 69 NY2d 490, 495). The evidence established that
defendant made admissions to several different people that he killed
his wife. We further conclude that, viewing the evidence in light of
the elements of the crime as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), the verdict is not against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495). Inasmuch as
there was direct evidence of defendant’s guilt consisting of his
admissions to several witnesses that he killed his wife, we reject
defendant’s further contention that the court erred in failing to give
a circumstantial evidence charge (see People v Casper, 42 AD3d 887,
888, lv denied 9 NY3d 990).

     Defendant failed to preserve for our review his contention that
the testimony of the experts violated his right of confrontation (see
People v Encarnacion, 87 AD3d 81, 89, lv denied 17 NY3d 952) and, in
any event, that contention is without merit. Those experts relied on
an autopsy report and DNA paternity report, respectively, but the
actual reports were not admitted in evidence. “Out-of-court
statements that are related by [an] expert solely for the purpose of
explaining the assumptions on which that opinion rests are not offered
for their truth and thus fall outside the scope of the Confrontation
Clause” (Williams v Ilinois, ___ US ___, ___, 132 S Ct 2221, 2228
[June 18, 2012]).

     Defendant was not denied a fair trial based upon cumulative error
(see People v Rumph, 93 AD3d 1346, 1348, lv denied 19 NY3d 967), and
the court did not err when it sentenced defendant. The court did not
base its sentence on a crime of which defendant had been acquitted
(cf. People v Wilkonson, 281 AD2d 373, 374, lv denied 96 NY2d 926),
but rather sentenced him based on all the relevant facts and
circumstances surrounding the crime of which he was convicted (see
People v La Veglia, 215 AD2d 836, 837). We have examined defendant’s
remaining contentions and conclude that they are without merit.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
