Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. JAMES KING, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44[2] ), criminal sale of a controlled substance in the third degree (§ 220.39[1] ), and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Defendant failed to preserve for our review his contention that reversal is required based on prosecutorial misconduct on summation ( see People v. Green, 43 A.D.3d 1279, 1281, 843 N.Y.S.2d 883,lv. denied9 N.Y.3d 1034, 852 N.Y.S.2d 19, 881 N.E.2d 1206) and, in any event, that contention is without merit. We agree with defendant that it was improper for the prosecutor to remark that a witness was afraid of defendant inasmuch as that was not a fair comment on the evidence ( see People v. Facciolo, 288 A.D.2d 392, 394, 734 N.Y.S.2d 179;cf. People v. Bahamonte, 89 A.D.3d 512, 512–513, 932 N.Y.S.2d 62,lv. denied18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128). We further agree with defendant that the prosecutor improperly used defendants past crimes of violence to suggest that the witness had “a reason to be afraid.” It is fundamental that the function of cross-examining a defendant about his or her prior criminal, vicious, or immoral acts “is solely to impeach [the defendant's] credibility as a witness” ( People v. Sandoval, 34 N.Y.2d 371, 376, 357 N.Y.S.2d 849, 314 N.E.2d 413). Nevertheless, we conclude that the prosecutor's isolated remarks were not so egregious as to deprive defendant of a fair trial ( see People v. Miller, 104 A.D.3d 1223, 1223–1224, 960 N.Y.S.2d 584,lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396;People v. Scott, 60 A.D.3d 1483, 1484, 875 N.Y.S.2d 728,lv. denied12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594), particularly considering that this was a bench trial ( see People v. Dixon, 50 A.D.3d 1519, 1519–1520, 856 N.Y.S.2d 383,lv. denied10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448;see generally People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.