Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Allen COLVIN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY AND SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of, inter alia, robbery in the first degree (Penal Law § 160.15 [4] ), defendant contends that Supreme Court erred in refusing to allow him to present evidence that a codefendant wrote a letter admitting that he committed the crimes charged in the indictment. We reject that contention. It is well settled that, “[b]efore statements of a nontestifying third party are admissible as a declaration against penal interest, the proponent must satisfy the court that four prerequisites are met [, including that] ... the declarant must be aware at the time of its making that the statement was contrary to his penal interest” (People v. Brensic, 70 N.Y.2d 9, 15, 517 N.Y.S.2d 120, 509 N.E.2d 1226, mot. to amend remittitur granted70 N.Y.2d 722, 519 N.Y.S.2d 641, 513 N.E.2d 1302; see People v. Shabazz, 22 N.Y.3d 896, 898). Here, defendant failed to establish that the author of the letter wrote it before pleading guilty, and defendant thus failed to establish that the admission contained in the letter was against the author's penal interest when he wrote it ( see generally People v. Ortiz, 81 A.D.3d 513, 514, 917 N.Y.S.2d 161, lv. denied16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981).
With respect to his contentions regarding the Huntley hearing, we note that defendant failed to preserve for our review his contention that the court “unduly limited his cross-examination of a police officer concerning ... statements” that defendant made to that officer (People v. Rookey, 292 A.D.2d 783, 783, 738 N.Y.S.2d 786, lv. denied98 N.Y.2d 701, 747 N.Y.S.2d 420, 776 N.E.2d 9). In any event, that contention is without merit. “It is well settled that ‘[a]n accused's right to cross-examine witnesses ... is not absolute’ ... [and that t]he trial court has discretion to determine the scope of the cross-examination of a witness” (People v. Corby, 6 N.Y.3d 231, 234, 811 N.Y.S.2d 613, 844 N.E.2d 1135, quoting People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730). Here, we conclude that the court did not abuse its discretion in limiting the scope of defendant's cross-examination of the officer at issue ( see People v. Baker, 294 A.D.2d 888, 889, 742 N.Y.S.2d 749, lv. denied98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556; People v. Herner, 212 A.D.2d 1042, 1045, 623 N.Y.S.2d 674, lv. denied 85 N.Y.2d 974, 629 N.Y.S.2d 734, 653 N.E.2d 630).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.