Opinion
2013-01-23
The PEOPLE, etc., respondent, v. Arthur HINES, appellant.
Marianne Karas, Armonk, N.Y., for appellant, and appellant pro se. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard Longworth Hecht, and Steven A. Bender of counsel), for respondent.
Marianne Karas, Armonk, N.Y., for appellant, and appellant pro se. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard Longworth Hecht, and Steven A. Bender of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Wetzel, J.), rendered June 11, 2010, as amended by a judgment of the same court (Zambelli, J.), rendered October 5, 2010, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment, as amended, is affirmed.
Contrary to the People's contention, the defendant's claim that the evidence was legally insufficient to establish his guilt is preserved for appellate review ( see People v. Soto, 8 A.D.3d 683, 779 N.Y.S.2d 251;cf. People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919). Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power ( seeCPL 470.15 [5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The Supreme Court providently exercised its discretion in precluding the defendant from submitting evidence with respect to a prior unrelated lawsuit against the police department and from cross-examining the arresting officers on the subject, since the defendant failed to establish that the arresting officers had any knowledge of the civil lawsuit at the time of the defendant's arrest, or any connection with the officers involved in that lawsuit. Although proof aimed at establishing a motive to fabricate is never collateral and may not be excluded on that ground, a trial court may, as here, in the exercise of its discretion, properly exclude such proof where it is too remote and speculative ( see People v. Thomas, 46 N.Y.2d 100, 412 N.Y.S.2d 845, 385 N.E.2d 584;People v. Hoover, 298 A.D.2d 599, 750 N.Y.S.2d 304;People v. Barney, 277 A.D.2d 460, 715 N.Y.S.2d 758;People v. Ayers, 161 A.D.2d 770, 556 N.Y.S.2d 659).
The defendant's contentions that various questions posed by the prosecutor during cross-examination and certain allegedly improper comments made by the prosecutor during her summation deprived him of his right to a fair trial are largely unpreserved for appellate review ( seeCPL 470.05[2]; People v. Osorio, 49 A.D.3d 562, 563–564, 855 N.Y.S.2d 163). In any event, for the most part, the challenged questions were proper, and the challenged comments were proper, fair comment on the evidence, permissible rhetorical comment, or responsive to the summation of defense counsel ( see People v. Dorgan, 42 A.D.3d 505, 838 N.Y.S.2d 787;People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57;People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714;People v. Vaughn, 209 A.D.2d 459, 619 N.Y.S.2d 573). To the extent that some of the questions and comments were improper, they were sufficiently addressed by the Supreme Court's instructions to the jury ( see People v. Evans, 291 A.D.2d 569, 738 N.Y.S.2d 244;People v. Brown, 272 A.D.2d 338, 708 N.Y.S.2d 302), or not unduly prejudicial ( see People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588;People v. Tolliver, 267 A.D.2d 1007, 701 N.Y.S.2d 206).
The remaining contentions raised in the defendant's main brief are without merit. The remaining contentions raised in the defendant's pro se supplemental brief either are without merit, or are based on matter dehors the record and are thus not reviewable on direct appeal.