Opinion
10189 Ind. 2888/12
10-24-2019
The PEOPLE of the State of New York, Respondent, v. Alex JEAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for Appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for Respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Allison N. Kahl of counsel), for Appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for Respondent.
Friedman, J.P., Kapnick, Oing, Singh, JJ.
The trial court providently exercised its discretion in precluding cross-examination of the victim and building security personnel regarding the victim's reports of unrelated prior thefts from his apartment, and in denying defendant's request to subpoena any such prior reports. There was no violation of defendant's right to cross-examine witnesses and present a defense (see Delaware v. Van Arsdall , 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ). While "a complainant's prior false allegations ... may be permitted if the prior allegations suggest a pattern casting substantial doubt on the validity of the charges ( People v. Diaz , 20 N.Y.3d 569, 576, 965 N.Y.S.2d 738, 988 N.E.2d 473 [2013] [internal quotation marks omitted] ), here the prior reports did not bear a significant probative relation to the instant charges and there was nothing but speculation upon which to even suspect that the reports were false (see People v. Mandel , 48 N.Y.2d 952, 953, 425 N.Y.S.2d 63, 401 N.E.2d 185 [1979], cert. denied 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805 [1980] ; People v. Petty , 17 A.D.3d 220, 795 N.Y.S.2d 1 [1st Dept. 2005], lv denied 5 N.Y.3d 793, 801 N.Y.S.2d 813, 835 N.E.2d 673 [2005] ). Furthermore, defendant received an ample opportunity to cross-examine the victim about whether defendant acquired the victim's money and property as payment for sex rather than by theft. In any event, any error was harmless. The evidence overwhelmingly established defendant's guilt and refuted his implausible defense (see People v. Hall , 18 N.Y.3d 122, 132, 936 N.Y.S.2d 630, 960 N.E.2d 399 [2011] ). The court properly denied defendant's mistrial motion, made where the prosecutor referred in his opening statement to a witness who was expected to testify but ultimately became unavailable. The prosecutor did not act in bad faith, and the curative instructions given by the court, at defense counsel's request, were sufficient to prevent any prejudice (see People v. De Tore , 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61 [1974], cert denied 419 U.S. 1025, 95 S.Ct. 503, 42 L.Ed.2d 300 [1974] ; People v. Miles , 157 A.D.3d 641, 70 N.Y.S.3d 189 [1st Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). Defendant's related claim that hearsay involving the uncalled witness was improperly admitted is unavailing. In any event, any error regarding the uncalled witness and related matters was harmless, for the reasons discussed above.
The court properly denied defendant's suppression motion. The record supports the hearing court's finding that there was probable cause to arrest defendant. A detective was able to recognize defendant both from the victim's description and from having observed him in a surveillance videotape. At the time of his arrest he was carrying the same distinctive duffel bag that he had stolen from the victim's apartment, as shown on the videotape. The detective was also aware that someone had brought the victim's stolen computer to a store for servicing and would be returning to the store to pick it up, providing further probable cause for the arrest when defendant appeared outside the store.
We perceive no basis for reducing the sentence.