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1
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OPINION
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EXTRACTED KEY WORDS
VICTIM PRIOR DEFENDANT TRIAL COURT ATTORNEY DEFENSE COUNSEL NY2D PRIOR RELATIONSHIP RESPONDENT JURY CONFLICT SUPRA APPELLANT MEMORANDUM UNCLE SUFFICIENT INQUIRY WITNESS INSTRUCTION JUDGE CONVICTION OPENING STATEMENT TERRORIZING PROSECUTOR TESTIMONY PRESENCE DISREGARD GOMBERG POTENTIAL CONFLICT ALICEA |
2 No. 51
The People &c.,
Respondent,
v.
Deshawn Smart,
Appellant.
_________________________________________________________________
2001 NY Int. 41
April 26, 2001
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Elizabeth Sack Felber, for appellant.
Jane S. Meyers, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was convicted after a jury trial of attempted murder in the
second degree and other offenses for shooting his uncle. Defendant
contends that the Trial Court failed to conduct a sufficient inquiry
when it learned of prior contact between defendant's attorney and the
victim, the People's primary witness. We conclude that no reversible
error occurred.
In his opening statement, defense counsel referred to the victim,
defendant's uncle, as a "bully" and a "terrorist." In response, the
prosecutor elicited the victim's testimony that he had formerly been
employed by defense counsel as a bodyguard. At a conference held
outside the presence of the jury, the prosecutor asserted that the
victim had informed her that he had been hired by a third party to
perform security duties in connection with an unrelated trial
involving defendant's attorney. Defense counsel responded that he had
never employed the victim but recalled the victim had been with a
group of people who met at his office and accompanied him to the
courthouse on one occasion. Further, the Trial Court ascertained that
defendant knew of the victim's prior relationship with defense
counsel. After this colloquy, the court instructed the jury to
disregard the victim's testimony that he had worked for defense
counsel, noting it was irrelevant to the issues presented at trial and
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