Opinion
2008-758 RI CR.
Decided July 8, 2010.
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Matthew A. Sciarrino, Jr., J.), rendered February 29, 2008. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree and attempted aggravated harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.
Following a nonjury trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26) and attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [a]). The sole issue raised on appeal is whether the Criminal Court properly sustained the People's objections to defense counsel's inquiries regarding whether the complainant had "touched" defendant's son and whether the complainant had "been under investigation by ACS [the New York City Administration for Children's Services]." Since defendant failed to assert a constitutional right to make the excluded inquiries, she preserved only a state law evidentiary issue, and her constitutional argument is unpreserved ( see People v Angelo, 88 NY2d 217, 222; People v Milan, 45 AD3d 255, 256).
A trial court has broad discretion to limit the scope of cross-examination when the questions concern collateral issues, threaten to mislead the jury, are repetitive, or are irrelevant or only marginally relevant ( see People v Francisco, 44 AD3d 870). The Criminal Court did not improvidently exercise its discretion in sustaining the People's objections, and defendant's right to confront witnesses and present a defense was not thereby violated ( see People v Milan, 45 AD3d at 256). The question of whether the complainant had "touched" defendant's son was vague, and was not even marginally relevant. We note that there is a vast difference between touching and hitting, and, when defense counsel later asked the complainant if she had "punched" defendant's son, the complainant replied, "No." The question regarding whether the complainant was being investigated by ACS was improper since the record does not indicate that there was a good faith basis to believe that she was being investigated. In any event, witnesses cannot be impeached merely by the fact that they are, or were, under investigation ( see e.g. People v Miller, 91 NY2d 372, 380). In addition, contrary to defendant's contention, the fact that the People's objections were sustained did not curtail testimony regarding how the complainant had disciplined defendant's son, since defense counsel went on to ask the complainant how she had disciplined defendant's son, to which question the complainant provided a detailed response.
Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Golia, JJ., concur.