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

415
KA 09-01789
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MARTIN S. PAULK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MARTIN S. PAULK, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), rendered June 19, 2009. The judgment convicted
defendant, upon a jury verdict, of kidnapping in the first degree and
intimidating a victim or witness in the third degree.

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

     Memorandum: Defendant appeals from two judgments convicting him,
following a consolidated jury trial, of various crimes arising from his
criminal sale and criminal possession of a controlled substance and his
subsequent kidnapping of a witness to the drug crimes. In December
2006, a confidential informant (hereafter, victim) provided the New York
State Police with names of known drug dealers, including defendant, whom
the victim had known for several years. The police arranged for two
controlled buys in January 2007 and, based on those buys, executed a
search warrant of defendant’s home later that month. Defendant was
arrested and arraigned on a felony complaint, dated January 25, 2007,
charging him with criminal possession of a controlled substance in the
third degree based on the discovery of cocaine during that search.
Approximately a year later, defendant was indicted on 10 counts of
criminal possession and sale of a controlled substance, and a trial was
scheduled for May 12, 2008.

     On the scheduled trial date, the People indicated that they were
not ready to proceed because the victim could not be located. The
victim was arrested pursuant to a material witness warrant approximately
one month later. He alleged that defendant, along with two other men,
had kidnapped him at gunpoint on May 7, 2008, held him captive for
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                                                         KA 09-01789

approximately five days, and thereafter drove him to Atlanta, where he
was ordered, on threat of physical violence against his family, to stay
in an apartment with defendant’s brother. The jury ultimately convicted
defendant, in appeal No. 1, of kidnapping in the first degree (Penal Law
§ 135.25 [2] [b]) and intimidating a victim or witness in the third
degree (§ 215.15 [1]) and, in appeal No. 2, of two counts each of
criminal sale of a controlled substance in the third degree (§ 220.39
[1]) and criminal possession of a controlled substance in the third
degree (§ 220.16 [1]).

     On appeal, defendant contends in his main and pro se supplemental
briefs that his conviction of kidnapping in the first degree is against
the weight of the evidence because the victim’s testimony was
untrustworthy and incredible of belief. While acquittal would not have
been unreasonable given the evidence presented at trial, particularly
the testimony of the victim (see People v Danielson, 9 NY3d 342, 348),
it is possible that the jury accepted some parts of the victim’s
testimony and rejected other parts (see generally People v Negron, 91
NY2d 788, 792). If the jury credited the victim’s initial abduction
testimony, that evidence would have fulfilled each element of the
kidnapping charge and, viewing the evidence in light of the elements of
that crime as charged to the jury (see Danielson, 9 NY3d at 349), we
conclude that the verdict finding defendant guilty of kidnapping in the
first degree is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant next contends in his main brief that Supreme Court should
have reopened the proof after jury deliberations had begun, when
defendant made an offer of proof that the victim had fabricated the
kidnapping story. We conclude that the court properly denied
defendant’s request to reopen the proof to present the exculpatory
testimony inasmuch as the proffered testimony related to credibility
(see People v Olsen, 34 NY2d 349, 355-356; see also People v Whipple, 97
NY2d 1, 6-7). To the extent that defendant raises a constitutional
issue concerning the reopening of the proof, defendant failed to
preserve that issue for our review by not raising it before the trial
court (see People v Lane, 7 NY3d 888, 889). We decline to exercise our
power to review that constitutional issue as a matter of discretion in
the interest of justice (see CPL 470.15 [6] [a]).

     We reject defendant’s contention in his main and pro se
supplemental briefs that he was deprived of a fair trial based on
prosecutorial misconduct. We note that defendant failed to object to
many of the allegedly improper comments made by the prosecutor and thus
failed to preserve his contention for our review to that extent (see CPL
470.05 [2]). With respect to those allegations of prosecutorial
misconduct that are preserved for our review, we conclude that they are
either without merit or that they were not so egregious as to deny
defendant due process of law (see generally People v Jacobson, 60 AD3d
1326, 1328, lv denied 12 NY3d 916).

     Defendant’s contention in his main brief that the court improperly
interfered with the examination of witnesses so as to deprive him of a
fair trial is not preserved for our review because defendant did not
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                                                         KA 09-01789

object at trial to the alleged improprieties (see CPL 470.05 [2]). 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]).
Contrary to defendant’s further contention in his main brief, the court
did not err in denying his motion pursuant to CPL 330.30 to set aside
the verdict based on newly discovered evidence (see People v Bowers, 4
AD3d 558, lv denied 2 NY3d 796). Defendant failed to meet his burden of
demonstrating by a preponderance of the evidence that the testimony of
three inmate witnesses was not cumulative to evidence already adduced at
trial (see CPL 330.30 [3]; see generally People v Wainwright, 285 AD2d
358, 360).

     We have considered defendant’s remaining contentions, including the
remaining contention in his pro se supplemental brief, and conclude that
they are without merit.




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
