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

887
KA 14-00529
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JOSUE GONZALES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOSUE GONZALES, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the   Onondaga County Court (Thomas J.
Miller, J.), rendered November 26,   2013. The judgment convicted
defendant, upon a jury verdict, of   murder in the second degree and
criminal possession of a weapon 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 murder in the second degree (Penal Law § 125.25
[1]) and criminal possession of a weapon in the second degree
(§ 265.03 [3]). Although we agree with defendant that certain actions
of the prosecutor during the grand jury proceedings were improper, we
conclude that County Court properly determined that the exceptional
remedy of dismissal of the indictment is not warranted (see generally
People v Huston, 88 NY2d 400, 409; People v Elioff, 110 AD3d 1477,
1477-1478, lv denied 22 NY3d 1040). To the extent that defendant
challenges the sufficiency of the evidence before the grand jury, that
contention is “not reviewable on this appeal from the ensuing judgment
based upon legally sufficient trial evidence” (People v Edgeston, 90
AD3d 1535, 1535-1536, lv denied 19 NY3d 973). Furthermore, 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
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s contention, the court did not err in
allowing the prosecutor to introduce, on redirect examination, the
prior consistent statement of a prosecution witness. Even assuming,
arguendo, that the court erred in allowing the prior consistent
                                 -2-                           887
                                                         KA 14-00529

statement under the rationale that the trial testimony of the witness
was “assailed—either directly or inferentially—as a recent
fabrication” by defense counsel on cross-examination (People v
McDaniel, 81 NY2d 10, 18), we conclude that the court properly
determined, as a second rationale, that defense counsel had opened the
door to that testimony on cross-examination (see People v Melendez, 55
NY2d 445, 451). It is well established that “[w]here . . . the
opposing party ‘opens the door’ on cross-examination to matters not
touched upon during the direct examination, a party has the right on
redirect ‘to explain, clarify and fully elicit [the] question only
partially examined’ on cross-examination” (id.). “[A] trial court
should decide ‘door-opening’ issues in its discretion, by considering
whether, and to what extent, the evidence or argument said to open the
door is incomplete and misleading, and what if any otherwise
inadmissible evidence is reasonably necessary to correct the
misleading impression” (People v Massie, 2 NY3d 179, 184). In our
view, once defense counsel elicited selected portions of the prior
statement of the witness on cross-examination, the prosecutor was free
to elicit the balance of the statement in order to give the evidence
before the jury its full and accurate context. Contrary to
defendant’s further contention on this point, the court “allow[ed]
[only] so much additional evidence to be introduced on redirect as
[was] necessary to ‘meet what ha[d] been brought out in the meantime
upon the cross-examination’ ” (Melendez, 55 NY2d at 452).

     Contrary to the contention of defendant, he received effective
assistance of counsel (see generally People v Baldi, 54 NY2d 137,
141). Defense counsel’s failure to obtain an expert on identification
evidence does not constitute ineffective assistance of counsel
inasmuch as “ ‘[d]efendant has not demonstrated that such testimony
was available, that it would have assisted the jury in its
determination or that he was prejudiced by its absence’ ” (People v
Jurgensen, 288 AD2d 937, 938, lv denied 97 NY2d 684). Furthermore,
“[d]efense counsel’s failure to request a missing witness charge did
not constitute ineffective assistance of counsel [inasmuch as t]here
was no indication that the witness would have provided noncumulative
testimony favorable to the People” (People v Smith, 118 AD3d 1492,
1493, lv denied 25 NY3d 953). Lastly, defendant failed to demonstrate
the absence of strategic or other legitimate explanations for
counsel’s alleged error in failing to request an “expanded” single
eyewitness jury instruction (see generally People v Stanley, 108 AD3d
1129, 1130, lv denied 22 NY3d 959).

     Defendant also contends that he was deprived of a fair trial
based on improper remarks from the prosecutor during the cross-
examination of witnesses and during opening and closing statements.
Defendant failed to preserve his contention for our review with
respect to many of the instances of alleged misconduct (see CPL 470.05
[2]). In any event, we reject defendant’s contention inasmuch as
“[r]eversal on grounds of prosecutorial misconduct ‘is mandated only
when the conduct has caused such substantial prejudice to the
defendant that he has been denied due process of law’ ” (People v
Rubin, 101 AD2d 71, 77, lv denied 63 NY2d 711). To the extent that
any of the prosecutor’s comments during opening or closing statements
                                 -3-                           887
                                                         KA 14-00529

exceeded the bounds of propriety, we conclude that they “ ‘were not so
pervasive or egregious as to deprive defendant of a fair trial’ ”
(People v Jackson, 108 AD3d 1079, 1080, lv denied 22 NY3d 997). We
reject defendant’s further contention that the photo array shown to
two witnesses was unduly suggestive inasmuch as it did not “create a
substantial likelihood that the defendant would be singled out for
identification” (People v Chipp, 75 NY2d 327, 336, cert denied 498 US
833). Additionally, we conclude that the sentence is not unduly harsh
or severe.

     Defendant failed to preserve for our review his contentions   in
his pro se supplemental brief concerning the court’s questioning   of
potential jurors, and 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 further contention in his pro se
supplemental brief, we conclude that he failed to satisfy his burden
of coming forward with substantial evidence that he was absent from a
material stage of the trial (see People v Andrew, 1 NY3d 546, 547;
People v Chacon, 11 AD3d 906, 907, lv denied 3 NY3d 755). “The
absence of a notation in the record indicating that defendant was
present is not sufficient to demonstrate that he was not present”
(People v Martin, 26 AD3d 847, 848, affd sub nom. People v Kisoon, 8
NY3d 129). In any event, the bench and sidebar conferences referenced
by defendant in his pro se supplemental brief “did not implicate his
peculiar knowledge or otherwise present the potential for his
meaningful participation” (People v Fabricio, 3 NY3d 402, 406). As a
consequence, contrary to defendant’s final contention in his pro se
supplemental brief, there is no reason to remit this matter for a
reconstruction hearing (see People v Foster, 1 NY3d 44, 49).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
