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People v. Donato

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 11, 1994
202 A.D.2d 1010 (N.Y. App. Div. 1994)

Opinion

March 11, 1994

Appeal from the Onondaga County Court, Mulroy, J.

Present — Denman, P.J., Green, Lawton, Callahan and Doerr, JJ.


Judgment unanimously affirmed. Memorandum: County Court did not err by allowing the prosecutor, on redirect examination of a detective, to elicit evidence that defendants had committed a prior burglary together. Evidence of prior convictions or uncharged crimes may be admitted on redirect examination if, on cross-examination, defendant opens the door to that testimony (People v. Melendez, 55 N.Y.2d 445, 451-452). Here, defense counsel tried to create the impression that the detective had focused his investigation on defendant Peak only because Peak was a friend of defendant Donato. Thus, the People were entitled to elicit the challenged testimony (see, People v. Brown, 176 A.D.2d 1232, lv denied 79 N.Y.2d 853; see also, People v. Barksdale, 188 A.D.2d 538, 539, lv denied 81 N.Y.2d 836). Moreover, County Court's curative instruction mitigated any possible prejudice resulting from the testimony (see, People v. Gilliard, 171 A.D.2d 531, 532, lv denied 77 N.Y.2d 995).

We cannot conclude that Donato was denied effective assistance of counsel solely because a notice of alibi was not filed, resulting in the preclusion of the testimony of a potential witness. Donato's defense attorney, who was not the first attorney in the case, told County Court that he had just been made aware of the witness and that she had failed to keep at least one appointment he had made with her. Under the circumstances, we cannot conclude that defendant informed his attorney in a timely manner about the witness and the nature of her expected testimony, nor can we conclude that counsel's efforts to interview the witness were inadequate (see, People v Rivera, 71 N.Y.2d 705, 709). That issue is best pursued in a motion pursuant to CPL 440.10.

County Court properly denied Peak's motion to set aside the verdict based on newly-discovered evidence. Peak failed to demonstrate that the evidence would probably change the result if a new trial were granted (see, People v. Burnette, 117 A.D.2d 987, 988, lv denied 69 N.Y.2d 1002).


Summaries of

People v. Donato

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 11, 1994
202 A.D.2d 1010 (N.Y. App. Div. 1994)
Case details for

People v. Donato

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID DONATO, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 11, 1994

Citations

202 A.D.2d 1010 (N.Y. App. Div. 1994)
612 N.Y.S.2d 697

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