Opinion
2012-08-1
The PEOPLE, etc., respondent, v. Hector RIVERA, appellant.
Campos & Wojszwilo, New York, N.Y. (Richard Wojszwilo of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shulamit Rosenblum Nemec, and Jill Oziemblewski of counsel), for respondent.
Campos & Wojszwilo, New York, N.Y. (Richard Wojszwilo of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shulamit Rosenblum Nemec, and Jill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered October 20, 2009, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The trial court has broad discretion to limit cross-examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury ( see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674;People v. Gaviria, 67 A.D.3d 701, 702, 886 N.Y.S.2d 900). The trial court did not deny the defendant the right to confront the witnesses against him by its decision to limit his cross-examination of a certain prosecution witness ( see People v. Baez, 59 A.D.3d 635, 635–636, 873 N.Y.S.2d 216;People v. Stevens, 45 A.D.3d 610, 611, 845 N.Y.S.2d 114).
In order for a defendant to compel production of a confidential informant, the defendant must demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case either through direct examination or impeachment ( see People v. Lesiuk, 81 N.Y.2d 485, 489, 600 N.Y.S.2d 931, 617 N.E.2d 1047;People v. Williams, 242 A.D.2d 917, 918, 662 N.Y.S.2d 896;People v. Perkins, 227 A.D.2d 572, 574, 643 N.Y.S.2d 173;People v. Rosa, 150 A.D.2d 623, 624, 541 N.Y.S.2d 492). There is no merit to the defendant's contention that the trial court erred in denying his request that the confidential informant be produced. “ ‘Bare assertions or conclusory allegations by a defendant that a witness is needed to establish his innocence will not suffice’ ” ( People v. Pena, 37 N.Y.2d 642, 644, 376 N.Y.S.2d 452, 339 N.E.2d 149, quoting People v. Goggins, 34 N.Y.2d 163, 169, 356 N.Y.S.2d 571, 313 N.E.2d 41,cert. denied419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286).
“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions” ( People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698;see U.S. Const. Sixth Amend.; N.Y. Const., art. I, § 6; People v. Collado, 90 A.D.3d 672, 672, 933 N.Y.S.2d 738). Here, the defendant was not deprived of the effective assistance of counsel under the New York Constitution because, viewing defense counsel's performance in totality, counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;People v. Collado, 90 A.D.3d at 673, 933 N.Y.S.2d 738). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).