Opinion
2016–10216 Ind. No. 7250/13
10-11-2023
The PEOPLE, etc., respondent, v. Andre BROWN, appellant.
Patricia Pazner, New York, NY (Sean Nuttall, Jonathan Schoepp–Wong, and Anna Jouravleva of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Patricia Pazner, New York, NY (Sean Nuttall, Jonathan Schoepp–Wong, and Anna Jouravleva of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, LILLIAN WAN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered September 7, 2016, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court violated his constitutional rights to present a defense and to due process by precluding him from cross-examining a police witness about a certain Facebook post is unpreserved for appellate review, since the defendant did not raise his constitutional claims at trial (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ; People v. Elliot, 127 A.D.3d 779, 779–780, 4 N.Y.S.3d 612 ). In any event, his contention is without merit. "A defendant has a constitutional right to confront the witnesses against him through cross-examination" ( People v. Middlebrooks, 300 A.D.2d 1142, 1143, 752 N.Y.S.2d 759 ). "In general, a witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal acts which may affect his [or her] character and show [the witness] to be unworthy of belief, provided the cross-examiner questions [the witness] in good faith and upon a reasonable basis in fact" ( People v. Brown, 103 A.D.3d 912, 912–913, 962 N.Y.S.2d 245 [internal quotation marks omitted]). Here, the court providently exercised its discretion in precluding cross-examination regarding the Facebook post, as such testimony would have been irrelevant to the material issues at trial (see People v. Thomas, 46 N.Y.2d 100, 105, 412 N.Y.S.2d 845, 385 N.E.2d 584 ; People v. Mohamed, 104 A.D.3d 707, 960 N.Y.S.2d 319 ; People v. Bowen, 67 A.D.3d 1022, 889 N.Y.S.2d 645 ).
The defendant's specific contentions regarding the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) are largely unpreserved for appellate review (see CPL 470.05[2] ; People v. Jones, 173 A.D.3d 1062, 102 N.Y.S.3d 265 ). In any event, the court providently exercised its discretion in ruling that, if the defendant testified, the prosecution could cross-examine him regarding two prior felony convictions, without permitting inquiry into the specific nature of those prior convictions or underlying facts (see People v. Mackey, 49 N.Y.2d 274, 282, 425 N.Y.S.2d 288, 401 N.E.2d 398 ; People v. Seymour, 77 A.D.3d 976, 978–979, 910 N.Y.S.2d 487 ; People v. Diaz, 50 A.D.3d 919, 855 N.Y.S.2d 647 ). The defendant failed to preserve for appellate review his contention that his rights to due process and to confront witnesses against him were violated by a testifying police witness’ reference to the fingerprint analysis findings of a non-testifying detective (see CPL 470.05[2] ; People v. Liner, 9 N.Y.3d 856, 840 N.Y.S.2d 755, 872 N.E.2d 868 ; People v. Lane, 7 N.Y.3d at 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 ). In any event, to the extent that the testimony was improper, any alleged violation of the defendant's rights to confrontation and due process was harmless, as the evidence of the defendant's guilt was overwhelming, and there is no reasonable possibility that the alleged error contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Witherspoon, 116 A.D.3d 800, 801, 982 N.Y.S.2d 923 ).
The defendant failed to preserve for appellate review his contention that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing (see CPL 470.05[2] ; People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017 ). In any event, the record fails to establish that the court penalized the defendant for exercising his right to proceed to trial (see People v. Moncayo, 195 A.D.3d 750, 144 N.Y.S.3d 871 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
IANNACCI, J.P., GENOVESI, DOWLING and WAN, JJ., concur.