                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   104484
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ALBERT J. RIVERA, Also Known
   as A.J. RIVERA,
                    Appellant.
________________________________


Calendar Date:   November 14, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ.

                             __________


     Eugene P. Grimmick, Troy, for appellant.

      Joel E. Abelove, District Attorney, Troy (Kelly L. Egan of
counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Rensselaer
County (Jacon, J.), rendered June 17, 2011, upon a verdict
convicting defendant of the crime of manslaughter in the second
degree.

      Defendant was indicted and charged with murder in the
second degree, criminal possession of a weapon in the second
degree and two counts of criminal possession of a weapon in the
third degree in connection with the October 2005 shooting death
of the victim in the City of Troy, Rensselaer County. The
shooting occurred in a dead-end alley that ran behind the
residence where the victim then was living, and the victim was
found lying on the ground near a white sport utility vehicle that
                               -2-                104484

was parked in the alley. Following a jury trial, defendant was
convicted as charged and sentenced to a lengthy period of
incarceration.1 Upon appeal, this Court reversed defendant's
murder conviction based upon County Court's failure to submit to
the jury the lesser included offense of manslaughter in the
second degree, remitted the matter for a new trial as to that
count and otherwise affirmed (70 AD3d 1177 [2010]). Following a
second trial, defendant was convicted of manslaughter in the
second degree and thereafter was sentenced as a second felony
offender to a prison term of 7½ to 15 years followed by five
years of postrelease supervision and was ordered to pay
restitution. This appeal by defendant ensued.

      Initially, we reject defendant's assertion that County
Court abused its discretion in failing to reopen the Huntley
hearing. Although "an order following a suppression motion made
pursuant to CPL article 710 ordinarily will be [binding in a
subsequent trial]" (People v Evans, 94 NY2d 499, 504-505 [2000]),
"[a] trial court may reopen a pretrial hearing if it 'is
satisfied, upon a showing by the defendant, that additional
pertinent facts have been discovered by the defendant which he
[or she] could not have discovered with reasonable diligence
before the determination' of his [or her] pretrial application"
(People v Fuentes, 53 NY2d 892, 894 [1981], quoting CPL 710.40
[4]; see People v McDonald, 82 AD3d 1125, 1126 [2011], lv denied
19 NY3d 964 [2012]). Inasmuch as defendant's motion here was
premised entirely upon events that allegedly occurred at the time
that he was initially questioned by law enforcement, i.e., events
to which defendant could have testified or otherwise brought to
light at the initial Huntley hearing, we do not find that County
Court abused its discretion in denying defendant's motion to
reopen (cf. People v Thompson, 118 AD3d 822, 823 [2014], lv
granted ___ NY3d ___ [Dec. 18, 2014]).



     1
        Derrick Rosa also was charged in the same indictment with
various weapons-related crimes for having obtained the gun used
in the shooting. Rosa ultimately pleaded guilty to attempted
criminal sale of a firearm and was sentenced to time served and
five years of probation.
                              -3-                104484

      Nor are we persuaded that the Assistant District Attorney
abused his discretion in refusing to grant immunity to Charles
Smith, whom the police discovered at the scene minutes after the
shooting. At the start of the trial, and outside of the presence
of the jury, Smith appeared and invoked his right against self-
incrimination, whereupon County Court inquired as to the People's
position with respect to immunity. The Assistant District
Attorney indicated that the People were unwilling to confer
immunity upon Smith at that time "[b]ecause he could be charged
as an accomplice, an accomplice to murder" – a representation
that both defense counsel and Smith's attorney strenuously
disputed.

      Pursuant to CPL 50.30, a prosecutor is vested with the
discretion to confer "full transactional immunity" upon a witness
appearing on behalf of either the People or the defendant (People
v Adams, 53 NY2d 241, 247 [1981]). Although the exercise of such
discretion "is reviewable for abuse if, for instance, the
prosecutor builds his [or her] case with immunized witnesses but
denies the defendant a similar opportunity" (id. at 247; see
People v Owens, 63 NY2d 824, 825-826 [1984]; People v Swank, 109
AD3d 1089, 1090 [2013], lv denied 23 NY3d 968 [2014]), we discern
no abuse of that discretion here. Notably, and contrary to
defendant's assertion, "[t]he absence of current charges against
the witness with respect to the subject of the proposed testimony
does not establish bad faith on the part of the prosecutor"
(People v Owens, 63 NY2d at 826).

      Defendant's claim that the People failed to exercise
diligent efforts to secure the testimony of an out-of-state
witness is equally unavailing. Pursuant to CPL 670.10 (1), a
trial court may "allow into evidence the testimony of a witness
given at a prior trial if the witness is outside the state and
cannot with due diligence be brought before the court" (People v
Diaz, 97 NY2d 109, 112 [2001]; see People v Arroyo, 54 NY2d 567,
569-570 [1982], cert denied 456 US 979 [1982]; People v Grice, 84
AD3d 1419, 1420 [2011], lv denied 17 NY3d 806 [2011]; People v
Hilts, 46 AD3d 947, 948-949 [2007], affd 13 NY3d 895 [2009]).
Here, the witness in question contacted the Rensselaer County
District Attorney's office and advised an Assistant District
Attorney that she had moved to Washington and was not interested
                              -4-                104484

in returning to New York to testify at defendant's subsequent
trial. The witness declined to provide a current address or
phone number and, when briefly placed on hold, ended the phone
call. Although the witness's mother also declined to provide any
information regarding her daughter's whereabouts, the People were
able to locate an address for the witness in Washington and
successfully applied to County Court for a material witness
order. When a member of the local sheriff's department in
Washington attempted service, however, the deputy found the
premises to be vacant and was advised by the landlord that the
witness had left in the middle of the night approximately six
weeks earlier. When the People again attempted to locate the
witness through her mother, who resided in Clinton County, they
discovered that the mother's phone had been disconnected.
Subsequent efforts were made by both local and Washington state
law enforcement officials and investigators to locate the witness
through various databases, including the Department of Motor
Vehicles and social media sites, all to no avail. County Court
ultimately determined that the People exercised diligent efforts
to locate the witness in question, and we discern no basis upon
which to set aside that finding (see People v Hilts, 46 AD3d 947
at 949; compare People v McDuffie, 46 AD3d 1385, 1385-1386
[2007], lv denied 10 NY3d 867 [2008]). Notably, and as found by
County Court, nothing in the record suggests "that the
prosecutor's failure to produce [the subject witness] was . . .
due to indifference or a strategic preference for presenting her
testimony in the more sheltered form of [a trial transcript]
rather than in the confrontational setting of a personal
appearance on the stand" (People v Arroyo, 54 NY2d at 571).

      As for defendant's challenges to County Court's various
Molineux rulings, "evidence of uncharged crimes or prior bad acts
may be admitted where they fall within the recognized Molineux
exceptions – motive, intent, absence of mistake, common plan or
scheme and identity – or where such proof is inextricably
interwoven with the charged crimes, provide[s] necessary
background or complete[s] a witness's narrative" (People v
Johnson, 106 AD3d 1272, 1274 [2013], lvs denied 21 NY3d 1045,
1045, 1046 [2013] [internal quotation marks and citations
omitted]; accord People v Brown, 114 AD3d 1017, 1019 [2014]) and,
further, "the trial court . . . determines that the probative
                              -5-                104484

value of such evidence outweighs its prejudicial effect" (People
v Brown, 114 AD3d at 1019). Here, defendant takes issue with the
fact that two of the witnesses who testified as to the
circumstances surrounding either his acquisition or display of a
gun on the night in question also made references to certain
drug-related activity. Upon reviewing the transcript, we agree
with County Court that such testimony provided necessary
context/background information or otherwise completed the
relevant witness's narrative. Upon balancing the probative value
of such testimony vis-a-vis its prejudicial effect, we conclude
that this testimony was properly admitted into evidence. We
reach a similar conclusion regarding testimony offered relative
to a structure fire, which the Troy fire chief labeled as arson,
that occurred one week before and near the scene of the shooting.
Such testimony plainly went to defendant's possible motive for
committing the crime, i.e., that the victim could implicate him
in setting the fire (see note 2, infra) and, on balance, was
properly admitted.

      Turning to defendant's claim that his conviction was
against the weight of the evidence, upon viewing the evidence in
a neutral light and granting appropriate deference to the jury's
credibility determinations (see People v Bleakley, 69 NY2d 490,
495 [1987]), we cannot say that the jury failed to accord the
evidence its proper weight. Various witnesses placed defendant
near the scene of the shooting immediately before it occurred,
and multiple witnesses described defendant as carrying a gun
earlier that evening. Certain witnesses also observed an
individual walking away from the scene of the shooting wearing
clothing substantially similar to that described by other
witnesses as the clothing worn by defendant earlier that day.
Additionally, at least two witnesses testified that defendant –
either expressly or tacitly – admitted that he had participated
in the shooting,2 and multiple witnesses testified as to


    2
        One witness testified that, when he asked defendant "if
he did it," defendant "look[ed] at [him], winked and just shushed
[him]" because other people were in the room. Another witness
testified that, shortly after the shooting occurred, he ran into
defendant at a local hospital, at which time defendant indicated
                              -6-                104484

statements made by defendant that reasonably could be interpreted
as evidencing his involvement therein.3 Admittedly, certain
contradictions and inconsistencies existed in the proffered
testimony, and some of the People's witnesses either had prior
criminal convictions, were allowed to plead to reduced charges in
exchange for their testimony or had made previous statements that
contradicted their testimony at trial. All of these issues,
however, "were fully explored during cross-examination and, in
the final analysis, posed credibility questions for the jury to
resolve" (People v Malak, 117 AD3d 1170, 1174 [2014], lv denied
___ NY3d ___ [Dec. 4, 2014]; see People v Desmond, 118 AD3d 1131,
1133 [2014], lv denied 24 NY3d 1002 [2014]; People v Forbes, 111
AD3d 1154, 1157-1158 [2013]). Upon viewing such evidence in its
totality, we do not find defendant's conviction to be against the
weight of the evidence.

      Finally, defendant contends that he was deprived of a fair
trial by virtue of the prosecutor's summation. We do not agree.
Initially, we note that virtually all of the now challenged
comments were unaccompanied by a contemporaneous objection at
trial, thereby rendering defendant's arguments in this regard


that "he was being investigated for a murder." Defendant then
mentioned the victim's name and said, "we did it" or "I did it."
This witness further testified that he recalled defendant
indicating that the shooting had "something to do about a fire
that was set and [the victim] was going to sign a statement on
him."
    3
        For example, one witness testified that defendant
appeared at his house approximately 30 minutes after the shooting
and asked "if she was dead or alive." This same witness, who
could place defendant in the alley near the time of the shooting,
also testified that defendant advised him "not to say anything
that [he] knew to the police" and indicated – in an apparent
reference to the shooting – that "it wasn't supposed to happen
like that." Another witness testified that while she was talking
with defendant in the alley that night, defendant noticed a
familiar white vehicle and remarked that "he should go down there
and shoot them."
                              -7-                  104484

unpreserved for our review (see People v Ormsby, 119 AD3d 1159,
1161 [2014], lv denied 24 NY3d 963 [2014]; People v VanVorst, 118
AD3d 1035, 1037 [2014]). In any event, the challenged statements
– in large measure – either constituted fair comment on the
evidence or were a fair response to comments made by defense
counsel in her closing and, viewing the summation as a whole, we
do not find "that the prosecutor engaged in a flagrant and
pervasive pattern of prosecutorial misconduct so as to deprive
[defendant] of a fair trial" (People v Green, 119 AD3d 23, 30
[2014], lv denied 23 NY3d 1062 [2014] [internal quotation marks
and citations omitted]). Defendant's remaining contentions,
including his assertion that the People improperly altered their
theory of liability and that the sentence imposed is harsh and
excessive, have been examined and found to be lacking in merit.

     Lahtinen, J.P., McCarthy and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
