Opinion
2015-11-13
The PEOPLE of the State of New York, Respondent, v. Noel R. RIVERA, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the first degree (Penal Law § 120.10[1] ). We agree with defendant that Supreme Court erred in precluding defense counsel from questioning a defense witness regarding the basis of her knowledge of a prosecution witness's reputation for truthfulness and honesty ( see People v. Hanley, 5 N.Y.3d 108, 112–114, 800 N.Y.S.2d 105, 833 N.E.2d 248; People v. Hopkins, 56 A.D.3d 820, 821–822, 866 N.Y.S.2d 819; see also People v. Carter, 31 A.D.3d 1167, 1168, 818 N.Y.S.2d 380). “ ‘[A] party has a right to call a witness to testify that a key opposing witness, who gave substantive evidence and was not called for purposes of impeachment, has a bad reputation in the community for truth and veracity’ ” ( People v. Fernandez, 17 N.Y.3d 70, 76, 926 N.Y.S.2d 390, 950 N.E.2d 126; see Hanley, 5 N.Y.3d at 112, 800 N.Y.S.2d 105, 833 N.E.2d 248). We conclude, however, that the error is harmless. The evidence of guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant if they were allowed to hear testimony that the prosecution witness had a bad reputation for truthfulness ( see Hopkins, 56 A.D.3d at 823–824, 866 N.Y.S.2d 819; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; cf. Hanley, 5 N.Y.3d at 114–115, 800 N.Y.S.2d 105, 833 N.E.2d 248).
Defendant's contention that the prosecutor's summation and the court's instruction to the jury constructively amended the indictment and thereby improperly changed the theory of the prosecution is not preserved for our review ( see People v. Cullen, 110 A.D.3d 1474, 1475, 972 N.Y.S.2d 792, affd. 24 N.Y.3d 1014, 997 N.Y.S.2d 348, 21 N.E.3d 1009; People v. Osborne, 63 A.D.3d 1707, 1708, 880 N.Y.S.2d 835, lv. denied13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020; People v. Odom, 53 A.D.3d 1084, 1086, 861 N.Y.S.2d 892, lv. denied11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104). In any event, that contention is without merit. The indictment charged defendant with assaulting one of the victims “by means of a deadly weapon, to wit: a shotgun.” Defendant contends that he was prejudiced both by the prosecutor's summation, which suggested that defendant shot that victim first with a shotgun and then a revolver, after the shotgun jammed, and the court's charge, which instructed the jury that they were to determine whether defendant committed assault “by means of a deadly weapon.” The indictment, however, “ ‘charged more than the People were required to prove under the statute ..., and the trial court's charge did not usurp the grand jury's powers or change the theory of the prosecution’ ” (Odom, 53 A.D.3d at 1086, 861 N.Y.S.2d 892; see People v. Spann, 56 N.Y.2d 469, 471–473, 452 N.Y.S.2d 869, 438 N.E.2d 402; see also People v. Sage, 204 A.D.2d 746, 747, 612 N.Y.S.2d 648, lv. denied84 N.Y.2d 832, 617 N.Y.S.2d 152, 641 N.E.2d 173). The People never changed their theory that the victim at issue was shot by defendant's use of a shotgun. Defendant's further contention that the trial evidence rendered the indictment duplicitous is not preserved for our review ( see People v. Allen, 24 N.Y.3d 441, 449–450, 999 N.Y.S.2d 350, 24 N.E.3d 586), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Defendant failed to preserve for our review his contention that he was denied a fair trial by prosecutorial misconduct ( see People v. Benton, 106 A.D.3d 1451, 1451–1452, 964 N.Y.S.2d 386, lv. denied21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853; People v. Wellsby, 30 A.D.3d 1092, 1093, 816 N.Y.S.2d 805, lv. denied7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290). In any event, his contention is without merit. The prosecutor's remarks on summation were within “the broad bounds of rhetorical comment permissible during summations” and did not shift the burden of proof (People v. McEathron, 86 A.D.3d 915, 916, 926 N.Y.S.2d 249, lv. denied19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [internal quotation marks omitted] ). The prosecutor's remarks regarding defendant's possession of the revolver was a fair response to defense counsel's summation and fair comment on the evidence ( see People v. Walker, 117 A.D.3d 1441, 1441–1442, 986 N.Y.S.2d 284, lv. denied23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513). The prosecutor did not engage in misconduct in questioning certain police officers and, to the extent the prosecutor engaged in misconduct during her cross-examination of a defense witness, that misconduct was not so egregious as to deprive defendant of a fair trial ( see Wellsby, 30 A.D.3d at 1093, 816 N.Y.S.2d 805). Finally, we reject defendant's contention that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.