Opinion
October 12, 1993
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Ordered that the judgment is affirmed.
Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). Resolutions of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94). The jury was entitled to credit the complainant's testimony, since it was not incredible as a matter of law. Therefore, since the jury's verdict is supported by the record, it should not be disturbed on appeal (see, People v. Garafolo, 44 A.D.2d 86).
The evidence of the defendant's prior assaults of the complainant was properly introduced into evidence. Although evidence of uncharged crimes is not admissible to show a defendant's predisposition to criminal conduct (see, People v Molineux, 168 N.Y. 264, 291-293), evidence of uncharged crimes is admissible when it is relevant to prove an element of the crime charged, and the probative value of the evidence outweighs the potential prejudice to the defendant (see, People v. Alvino, 71 N.Y.2d 233, 242; People v. Lewis, 69 N.Y.2d 321, 325). Accordingly, in the present case, evidence of the defendant's prior physical abuse of the complainant was admissible, since it was probative of the victim's state of mind and relevant to prove that the defendant used "forcible compulsion", a necessary element of the conviction of rape in the first degree and sodomy in the first degree and the probative value outweighed any prejudice to the defendant (see, People v. Barlow, 88 A.D.2d 668; People v Johnson, 37 A.D.2d 218, 221, affd 30 N.Y.2d 776).
Further, the trial court did not improvidently exercise its discretion in precluding defense counsel from cross-examining the arresting officer regarding his familiarity with search and seizure law. Although proof aimed at establishing a motive to fabricate testimony is never collateral and may not be excluded on that ground, a trial court may, in the exercise of its discretion, properly exclude such proof where it is too remote or speculative (see, People v. Rodriguez, 191 A.D.2d 723; People v Stewart, 188 A.D.2d 626; People v. Veras, 182 A.D.2d 729). Moreover, cross-examination aimed at establishing a possible reason to fabricate testimony must proceed upon some good-faith basis (see, People v. Hudy, 73 N.Y.2d 40, 57; People v. Rodriguez, supra). In the present case, defense counsel's attempts to establish that the arresting officer fabricated his testimony regarding the recovery of the gun because of his knowledge of search and seizure law was entirely speculative. Moreover, any probative value of the cross-examination was outweighed by the danger that the main issues would be obscured and the jury would be confused (see, People v. Davis, 43 N.Y.2d 17, cert denied 435 U.S. 998).
The lost notes of the nurse who was present during the physical examination of the complainant were not Rosario material, since the People had neither actual nor constructive possession of the notes (see, People v. Flynn, 79 N.Y.2d 879, 882; People v Tissois, 72 N.Y.2d 75, 78; People v. Berkley, 157 A.D.2d 463; cf., People v. Ranghelle, 69 N.Y.2d 56, 64). Thus, the trial court properly denied defense counsel's request for the imposition of sanctions against the People for the loss of the notes.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are unpreserved for appellate review, without merit, or do not require reversal. Mangano, P.J., Sullivan, Miller and Pizzuto, JJ., concur.