TOLLIVER, JOHN, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
79
KA 10-01061
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOHN TOLLIVER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN TOLLIVER, DEFENDANT-APPELLANT PRO SE.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 4, 2010. 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]). We reject the contention of defendant in his main and
pro se supplemental briefs that he was denied a fair trial based on
the use of his nicknames “Crim” and “Criminal” in the indictment.
Supreme Court properly instructed the jury that the indictment
contained “simply . . . accusation[s]” and “was not in any way
evidence” of those accusations (see People v Johnson, 253 AD2d 702,
703-704, lv denied 92 NY2d 1031, 1034). In addition, inasmuch as
several of the People’s witnesses knew defendant only by his
nicknames, it was permissible for the People to elicit testimony
regarding those nicknames at trial for identification purposes (see
People v Hoffler, 41 AD3d 891, 892, lv denied 9 NY3d 962, 963; People
v Caver, 302 AD2d 604, lv denied 99 NY2d 652, 653). Indeed, the court
instructed the jury that the evidence concerning defendant’s nicknames
was “competent for one particular purpose only: [e]stablishing the
identity of the [d]efendant.” Defendant’s further contention in his
main and pro se supplemental briefs that the prosecutor’s use of the
nicknames during summation constituted misconduct is not preserved for
our review (see Caver, 302 AD2d 604). In any event, any error with
respect to the prosecutor’s use of the nicknames is harmless inasmuch
-2- 79
KA 10-01061
as the evidence of defendant’s guilt was overwhelming and there was no
significant probability that defendant would have been acquitted but
for the alleged error, especially in light of the court’s instruction
to the jury (see id.; see generally People v Crimmins, 36 NY2d 230,
241-242). We reject defendant’s contention in his main and pro se
supplemental briefs that defense counsel was ineffective in failing to
object to comments made by the prosecutor during summation (see People
v Lyon, 77 AD3d 1338, 1339, lv denied 15 NY3d 954).
Defendant’s challenge to the legal sufficiency of the evidence
corroborating the testimony of his accomplice, raised in his main and
pro se supplemental briefs, is unpreserved for our review because he
did not raise the issue of accomplice corroboration in his general
motion for a trial order of dismissal (see People v Gray, 86 NY2d 10,
19). In any event, defendant’s challenge is without merit (see
generally People v Bleakley, 69 NY2d 490, 495). We reject defendant’s
contention in his main brief that he was denied effective assistance
of counsel based on the failure of defense counsel to move for a trial
order of dismissal on that ground (see generally People v Baldi, 54
NY2d 137, 147). “Defendant has not shown that [such a] motion, if
made, would have been successful and thus has failed to establish that
defense counsel was ineffective in failing to make such a motion”
(People v Borcyk, 60 AD3d 1489, 1490, lv denied 12 NY3d 923). 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 accord great
deference to the jury’s resolution of credibility issues and conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).
By failing to object to the court’s ultimate Sandoval ruling,
defendant failed to preserve for our review his further contention in
his main brief that the ruling constitutes an abuse of discretion (see
People v Brown, 39 AD3d 1207, lv denied 9 NY3d 921; People v Alston,
27 AD3d 1141, lv denied 6 NY3d 892). In any event, the court’s
Sandoval ruling did not constitute a “ ‘clear abuse of discretion’ ”
warranting reversal (People v Nichols, 302 AD2d 953, 953, lv denied 99
NY2d 657; see People v Reid, 34 AD3d 1273, lv denied 8 NY3d 884). The
prior convictions in question were relevant to the credibility of
defendant (see People v Marquez, 22 AD3d 388, 391, lv denied 6 NY3d
778). Finally, the sentence is not unduly harsh or severe.
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court