Opinion
9 KA 18-00692
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Tyquan JOHNSON, Defendant-Appellant. (Appeal No. 1.)
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convicting him, upon a jury verdict, of four counts of burglary in the second degree ( Penal Law § 140.25 [2] ), as charged in separate indictments. We affirm in both appeals.
Defendant contends in both appeals that County Court erred in permitting two fingerprint examiners to testify to their opinions within "a reasonable degree of scientific certainty." Contrary to the People's assertion, defendant preserved his contention for our review by specifically objecting to testimony from the first fingerprint examiner that her opinion was made to a reasonable degree of scientific certainty (see generally CPL 470.05 [2] ; People v. Burke-Wells , 134 A.D.3d 1436, 1436, 21 N.Y.S.3d 777 [4th Dept. 2015], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ). The court overruled that objection, definitively rejecting defendant's challenge to the form of the opinion questions posed to the witness, and thus defendant was not required to repeat the objection in order to preserve for review his contention with respect to the second fingerprint examiner (see generally People v. Finch , 23 N.Y.3d 408, 413, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014] ). Nonetheless, even assuming, arguendo, that the court erred in permitting the fingerprint examiners to state their opinion to a reasonable degree of scientific certainty, we conclude that any such error is harmless (see People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; People v. Davis , 21 A.D.3d 1336, 1337, 801 N.Y.S.2d 855 [4th Dept. 2005], lv denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006] ).
We reject defendant's contention that the court erred in denying his challenge for cause with respect to a prospective juror who indicated that he did not have a complete understanding of English, which was his second language. The prospective juror stated that he had lived in the United States for 45 years, that he understood "most" English, and that he understood all of the questioning by the court and the attorneys during voir dire. Based on the foregoing, we conclude that "the record establishes that [the prospective juror's] ability to communicate in the English language was sufficient" to support the court's denial of defendant's challenge for cause ( People v. Berry , 43 A.D.3d 1365, 1366, 842 N.Y.S.2d 822 [4th Dept. 2007], lv denied 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] [internal quotation marks omitted]; see People v. Guzman , 76 N.Y.2d 1, 5, 556 N.Y.S.2d 7, 555 N.E.2d 259 [1990] ; People v. Chohan , 254 A.D.2d 124, 124, 679 N.Y.S.2d 10 [1st Dept. 1998], lv denied 92 N.Y.2d 1030, 684 N.Y.S.2d 495, 707 N.E.2d 450 [1998]).
We also reject defendant's contention that the court erred in precluding him from cross-examining police witnesses about the scope of the investigation into the underlying crimes—i.e., if the police investigated whether the items stolen during the burglaries had been pawned. "[T]he trial court has broad discretion to limit cross-examination where questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury" ( People v. Pena , 113 A.D.3d 701, 702, 978 N.Y.S.2d 693 [2d Dept. 2014], lv denied 22 N.Y.3d 1201, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; see also People v. Baker , 294 A.D.2d 888, 889, 742 N.Y.S.2d 749 [4th Dept. 2002], lv denied 98 N.Y.2d 708, 749 N.Y.S.2d 5, 778 N.E.2d 556 [2002]). However, "[c]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony" ( People v. Smith , 12 A.D.3d 1106, 1106, 784 N.Y.S.2d 810 [4th Dept. 2004], lv denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 [2005] [internal quotation marks omitted]). Here, the court did not abuse its discretion in limiting as irrelevant defense counsel's inquiry into the police investigation because there was no evidence that the stolen property had ever been pawned or that the post-burglary sale of the stolen property somehow called into question defendant's identity as the perpetrator of the burglaries (see People v. Porter , 184 A.D.3d 1014, 1018, 125 N.Y.S.3d 776 [3d Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 383, 152 N.E.3d 1185 [2020] ; Smith , 12 A.D.3d at 1106, 784 N.Y.S.2d 810 ; cf. People v. Snow , 185 A.D.3d 1400, 1402-1403, 128 N.Y.S.3d 114 [4th Dept. 2020], lv denied 35 N.Y.3d 1115, 133 N.Y.S.3d 510, 158 N.E.3d 527 [2020] ; see generally Baker , 294 A.D.2d at 889, 742 N.Y.S.2d 749 ). Even assuming, arguendo, that the court erred in limiting defendant's cross-examination on the subject of the police investigation, we conclude that any such error is harmless (see Crimmins , 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Gannon , 174 A.D.3d 1054, 1061, 104 N.Y.S.3d 770 [3d Dept. 2019], lv denied 34 N.Y.3d 980, 113 N.Y.S.3d 632, 137 N.E.3d 2 [2019] ).
Finally, contrary to defendant's further contention, we conclude that the sentence in each appeal is not unduly harsh or severe.