Opinion
2012-11-14
The PEOPLE, etc., respondent, v. Michael DUNSTON, appellant.
Barry Gene Rhodes, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Barry Gene Rhodes, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered February 2, 2011, convicting him of reckless endangerment in the first degree, reckless endangerment in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contentions that the evidence was legally insufficient to support the jury's verdict with respect to the counts of reckless endangerment in the first degree under Penal Law § 120.25 (count 1), criminal possession of a weapon in the second degree under Penal Law § 265.03(3)(count 3), and criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) (count 4)( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Gray, 86 N.Y.2d 10, 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt on those counts beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt on those counts 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).
It was improper for the trial court to permit the People to impeach their own witness since his testimony did not tend to disprove a material issue of the case ( seeCPL 60.35; People v. Fitzpatrick, 40 N.Y.2d 44, 52, 386 N.Y.S.2d 28, 351 N.E.2d 675). Nevertheless, we conclude that such error was harmless because there was overwhelming evidence of the defendant's guilt, and no significant probability that the jury would have acquitted the defendant had it not been for the error ( see People v. Saez, 69 N.Y.2d 802, 804, 513 N.Y.S.2d 380, 505 N.E.2d 945;People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Murillo, 256 A.D.2d 423, 424, 682 N.Y.S.2d 617;People v. Comer, 146 A.D.2d 794, 795, 537 N.Y.S.2d 272). For the same reason, while the trial court erred in admitting certain hearsay testimony, such error was also harmless ( see People v. Crimmins, 36 N.Y.2d at 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Harvey, 270 A.D.2d 959, 960, 706 N.Y.S.2d 562).
The defendant's contention that he was deprived of a fair trial due to prosecutorial misconduct is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;People v. Harris, 98 N.Y.2d 452, 492, 749 N.Y.S.2d 766, 779 N.E.2d 705;People v. Tonge, 93 N.Y.2d 838, 839–840, 688 N.Y.S.2d 88, 710 N.E.2d 653;People v. Dien, 77 N.Y.2d 885, 886, 568 N.Y.S.2d 899, 571 N.E.2d 69;People v. Rivera, 73 N.Y.2d 941, 941–942, 540 N.Y.S.2d 233, 537 N.E.2d 618;People v. Jones, 76 A.D.3d 716, 717, 907 N.Y.S.2d 306). In any event, the challenged remarks were not so prejudicial as to constitute reversible error.
The defendant also contends that the trial court deprived him of a fair trial by precluding a defense witness from testifying. Contrary to the defendant's contention, the trial court providently exercised its discretion in precluding the witness from testifying in view of the collateral nature of the prospective testimony ( see People v. Aska, 91 N.Y.2d 979, 981, 674 N.Y.S.2d 271, 697 N.E.2d 172;People v. DeBerry, 17 A.D.3d 480, 481, 792 N.Y.S.2d 343).
There is no merit to the defendant's contention that the trial court deprived him of a fair trial by denying his request for a jury charge that a prosecution witness's intoxication may be considered in evaluating the witness's credibility. The general credibility instruction given by the trial court was sufficient ( see generally People v. Gillyard, 70 A.D.3d 854, 855, 894 N.Y.S.2d 516;People v. Butts, 139 A.D.2d 660, 527 N.Y.S.2d 299).
The defendant's remaining contention is unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, without merit.