Opinion
03-09-2016
The PEOPLE, etc., respondent, v. Andrew CABALLERO, appellant.
Robert DiDio, Kew Gardens, N.Y. (Danielle Muscatello of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters and Jill Gross–Marks of counsel), for respondent.
Robert DiDio, Kew Gardens, N.Y. (Danielle Muscatello of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters and Jill Gross–Marks of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Schwartz, J.), rendered September 10, 2014, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that his conviction was not supported by legally sufficient evidence is largely unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the evidence 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).
The defendant's contention that the Supreme Court violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution is not preserved for appellate review (see People v. Walker, 70 A.D.3d 870, 871, 894 N.Y.S.2d 156). In any event, the contention is without merit. While the Confrontation Clause guarantees an opportunity for effective cross-examination, it does not guarantee a cross-examination “that is effective in whatever way, and to whatever extent, the defense might wish” (Delaware
v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15; see People v. Burns, 6 N.Y.3d 793, 795, 811 N.Y.S.2d 297, 844 N.E.2d 751; People v. Goodson, 35 A.D.3d 760, 761, 825 N.Y.S.2d 778). It is within the discretion of the trial court to limit the scope of cross-examination when questions are irrelevant, concern collateral issues, or risk misleading the jury (see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674; People v. Legere, 81 A.D.3d 746, 750, 916 N.Y.S.2d 187; People v. Gaviria, 67 A.D.3d 701, 886 N.Y.S.2d 900; People v. Francisco, 44 A.D.3d 870, 843 N.Y.S.2d 439). Here, the court's limitation of the defense cross-examination was a provident exercise of its discretion.
The prosecution is required to turn over to the defense counsel all statements of a prosecution witness relating to the subject matter of the witness's testimony (see CPL 240.45[1][a]; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881). Here, the representation by the prosecutor, that no prior statements of the subject witness requested by defense counsel existed, satisfied the prosecutor's burden, since the defendant could not articulate a factual basis for his claim that the prosecutor improperly denied the existence of such statements (see People v. Poole, 48 N.Y.2d 144, 149, 422 N.Y.S.2d 5, 397 N.E.2d 697; People v. Rodriguez, 270 A.D.2d 505, 705 N.Y.S.2d 387; People v. Perez, 209 A.D.2d 643, 644, 619 N.Y.S.2d 641). Therefore, a Rosario hearing was not warranted.
Contrary to the defendant's contention, the Supreme Court properly admitted into evidence a statement of a certain witness as an excited utterance. The circumstances surrounding the statement warrant the conclusion that the statement was not made “under the impetus of studied reflection” (People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229), and permit a reasonable inference that the declarant had an opportunity to observe the altercation that led to the victim's death (see People v. Fratello, 92 N.Y.2d 565, 571, 684 N.Y.S.2d 149, 706 N.E.2d 1173; People v. Young, 308 A.D.2d 555, 556, 764 N.Y.S.2d 468).
The defendant's remaining contentions are without merit.