Opinion
2016–01657 Ind. No. 10127/14
05-15-2019
The PEOPLE, etc., Respondent, v. Toyan GROSE, Appellant.
Paul Skip Laisure, New York, N.Y. (Cynthia Colt, New York, of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, Brooklyn, and Abed Z. Bhuyan of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Cynthia Colt, New York, of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, Brooklyn, and Abed Z. Bhuyan of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deborah A. Dowling, J.), rendered January 19, 2016, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
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 of robbery in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 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 ).
Contrary to the defendant's contention, the trial justice providently exercised her discretion in declining to recuse herself from determining his motion to controvert a warrant to search his Facebook account. Absent a legal disqualification under Judiciary Law § 14, a judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience (see People v. Brims, 145 A.D.3d 1025, 1025–1026, 45 N.Y.S.3d 488 ; People v. Smith, 123 A.D.3d 950, 999 N.Y.S.2d 459 ; People v. Modica, 80 A.D.3d 590, 914 N.Y.S.2d 266 ). Judiciary Law § 14 does not compel a judge to recuse himself or herself from ruling on the validity of a search warrant that he or she previously issued (see People v. Novak, 30 N.Y.3d 222, 227, 88 N.E.3d 305 ; People v. McCann, 85 N.Y.2d 951, 952–953, 626 N.Y.S.2d 1006, 650 N.E.2d 853 ). Moreover, the search warrant was supported by probable cause and was not unconstitutionally overbroad.
The defendant contends that at trial, he was deprived of his rights to present a defense, to confront the witnesses against him, and to a fair trial when the Supreme Court curtailed defense counsel's cross-examination of two witnesses regarding the complainant's alleged motive to fabricate and precluded the defendant from testifying at trial regarding the complainant's alleged motive to fabricate. " ‘While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, when the evidence is too remote or speculative of a motive to fabricate, the trial court may, in its discretion, exclude such proof’ " ( People v. Spencer, 87 A.D.3d 751, 752, 928 N.Y.S.2d 607, affd 20 N.Y.3d 954, 959 N.Y.S.2d 112, 982 N.E.2d 1245, quoting People v. Garcia, 47 A.D.3d 830, 831, 849 N.Y.S.2d 637 ; see People v. Thomas, 46 N.Y.2d 100, 105, 412 N.Y.S.2d 845, 385 N.E.2d 584 ; People v. Licausi, 122 A.D.3d 771, 772–773, 996 N.Y.S.2d 188 ; People v. Hines, 102 A.D.3d 889, 889, 958 N.Y.S.2d 724 ; People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164 ; People v. Walsh, 35 A.D.3d 637, 829 N.Y.S.2d 119 ; People v. George, 197 A.D.2d 588, 589, 602 N.Y.S.2d 643 ). Moreover, "[c]ross-examination aimed at establishing a motive to fabricate must proceed on some good faith basis" ( People v. Hicks, 88 A.D.3d 817, 818–819, 930 N.Y.S.2d 658 ; see People v. Spencer, 87 A.D.3d at 752, 928 N.Y.S.2d 607 ; People v. Garcia, 47 A.D.3d at 831, 849 N.Y.S.2d 637 ; People v. Ocampo, 28 A.D.3d 684, 685, 813 N.Y.S.2d 217 ; People v. Farooq, 304 A.D.2d 772, 757 N.Y.S.2d 777 ; People v. Sandel, 299 A.D.2d 373, 374, 749 N.Y.S.2d 554 ; People v. Ashner, 190 A.D.2d 238, 247, 597 N.Y.S.2d 975 ). Here, the proposed line of inquiry by defense counsel was too remote and speculative to infer a motive to fabricate (see People v. Garcia, 47 A.D.3d at 830, 849 N.Y.S.2d 637 ; People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164 ; People v. Walsh, 35 A.D.3d 637, 829 N.Y.S.2d 119 ). Therefore, we agree with the court's determination to limit the scope of defense counsel's cross-examination and to preclude the elicitation of testimony by the defendant under that line of inquiry.
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's contention, raised in his pro se supplemental brief, that he was unlawfully arrested without a warrant is without merit (see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 ). The defendant's contention, raised in his pro se supplemental brief, that the Supreme Court improvidently exercised its discretion in curtailing defense counsel's cross-examination of the police witness during the suppression hearing is also without merit (see People v. Spirles, 136 A.D.3d 1315, 1317, 25 N.Y.S.3d 462 ; People v. Daise, 220 A.D.2d 524, 632 N.Y.S.2d 191 ).
SCHEINKMAN, P.J., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.