SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

681 

KA 13-02182 

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL A. GUARIGLIA, DEFENDANT-APPELLANT.

 

NORMAN P. DEEP, ROME, FOR DEFENDANT-APPELLANT. 

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MATTHEW P. WORTH OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Barry M.

Donalty, J.), rendered March 8, 2012. The judgment convicted

defendant, upon a jury verdict, of grand larceny in the fourth degree

and burglary in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of grand larceny in the fourth degree (Penal

Law § 155.30 [1]) and burglary in the third degree (§ 140.20). The

evidence at trial established that defendant, an employee of a

pizzeria, gave his keys to the pizzeria and the safe inside to a

codefendant who, during the early morning hours, entered the building

and stole approximately $3,000 in cash. The evidence further

established that defendant drove the codefendant to the pizzeria but

stayed in the vehicle while the codefendant went inside, and that the

two men then split the proceeds. 

We reject defendant’s contention that County Court erred in

allowing the codefendant to testify at trial that, when defendant

suggested that they commit the crime, defendant stated that he and his

brother had previously stolen money from another employer in a similar

manner. As the court properly determined, evidence of defendant’s

statement to the codefendant was part of the res gestae, inasmuch as

it showed how defendant planned the crime and persuaded the

codefendant to assist him (see generally People v Owens, 51 AD3d 1369,

1371, lv denied 11 NY3d 740; People v Chavys, 263 AD2d 964, 965, lv

denied 94 NY2d 821). In any event, any error with respect to the

admission of the codefendant’s testimony is harmless (see generally

People v Crimmins, 36 NY2d 230, 241-242). 

Defendant further contends that he was deprived of a fair trial
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KA 13-02182 

because the People failed to disclose fully the benefits that a

prosecution witness received in return for her testimony. The witness

in question is defendant’s former girlfriend, who at the time of trial

had two outstanding warrants from Rome City Court, one for a traffic

ticket and the other for a petit larceny charge. The People disclosed

prior to trial that in return for her testimony the witness was

promised that she would not be taken into custody when she appeared in

court to testify and that she would be allowed to turn herself in on

the warrants. The day after she testified, the witness appeared in

Rome City Court and was released on her own recognizance on both

warrants. Defense counsel later learned that the prosecutor had

called the Judge in City Court and asked that the witness be released

on the warrants. In a subsequent CPL 330.30 motion, defendant

contended that he was entitled to a new trial because, among other

reasons, the prosecutor did not disclose that the witness had been

promised that she would be released on the warrants. In their papers

opposing defendant’s postverdict motion, the People did not controvert

defendant’s assertion that the prosecutor contacted the City Court

Judge to recommend the witness’s release. 

Even assuming, arguendo, that the court should have conducted a

hearing on defendant’s motion to determine whether the prosecutor made

undisclosed promises to the witness before she testified (see CPL

330.40 [2] [f]; see generally People v Nicholson, 222 AD2d 1055, 1056-

1057; People v Tokarski, 178 AD2d 961, 961), we conclude that the

error is harmless beyond a reasonable doubt (see generally Crimmins,

36 NY2d at 237). We note that the witness’s trial testimony was

consistent with a statement she gave to the police and her grand jury

testimony, both of which occurred before the People made any promises

to her. Moreover, the jurors knew that the witness had been promised

that she would not be taken into custody at trial on the warrants, and

it is doubtful that their assessment of her credibility would have

changed if they had been informed that the prosecutor would recommend

that she be released on the warrants once she turned herself in to

City Court.

Finally, we reject defendant’s remaining contention that he was

impermissibly denied his right to confront the same prosecution

witness, i.e., his former girlfriend, about her theft of an

electronics device from the home of her son’s father during a birthday

party to which she had been invited (see generally People v Rivera, 98

AD3d 529, lv denied 20 NY3d 935; cf. People v Young, 235 AD2d 441,

445-446, lv denied 81 NY2d 895). The court did not allow defense

counsel to cross-examine the witness about the underlying facts of the

crime because the witness, and apparently the court, were under the

misapprehension that the charge was still pending, and thus the court

was concerned that defense counsel’s questions would implicate the

witness’s Fifth Amendment rights. As defense counsel determined after

the witness testified but before the People rested, however, the

witness had pleaded guilty to a lesser offense with respect to the

theft and had already been sentenced by the time she testified at

defendant’s trial. When defense counsel informed the court that the

theft charge was no longer pending, the court ruled that defendant

could serve the witness with a subpoena and then question her in
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KA 13-02182 

detail about the theft. It appears from the motion papers that the

prosecutor knew that the petit larceny charge was no longer pending

and yet was silent when the court precluded defense counsel from

cross-examining the witness due to concerns about her non-existent

Fifth Amendment rights, and the People do not explain the prosecutor’s

conduct in this regard. Nevertheless, because defendant was given the

opportunity to have the witness brought back to the stand for further

examination but declined to do so, it cannot be said that he was

deprived of his right to confront the witness about the petit larceny

charge. 

Entered: July 3, 2014 Frances E. Cafarell

Clerk of the Court