Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Rafiq SALIM, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered April 15, 2010. The judgment convicted defendant, upon a nonjury verdict, of harassment in the second degree and assault in the third degree. Kevin J. Bauer, Albany, for defendant–appellant. Rafiq Salim, defendant–appellant pro se.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered April 15, 2010. The judgment convicted defendant, upon a nonjury verdict, of harassment in the second degree and assault in the third degree.
Kevin J. Bauer, Albany, for defendant–appellant. Rafiq Salim, defendant–appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the third degree (Penal Law § 120.00[1] ) and harassment in the second degree (§ 240.26[1] ). Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention lacks merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). In addition, viewing the evidence in light of the elements of the crimes in this nonjurytrial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We further conclude, however, that Supreme Court abused its discretion in admitting rebuttal evidence concerning defendant's relationship with a woman other than his wife, requiring reversal of the judgment and a new trial. “The general rule of evidence in this State concerning the impeachment of witnesses with respect to collateral matters is ‘that the cross-examiner is bound by the answers of the witness to questions concerning collateral matters inquired into solely to affect credibility’ ” ( People v. Pavao, 59 N.Y.2d 282, 288, 464 N.Y.S.2d 458, 451 N.E.2d 216;see People v. Bellamy, 26 A.D.3d 638, 641, 809 N.Y.S.2d 287). Defendant's extramarital relationship “was not a material issue in this case ... [, and t]he rebuttal testimony served solely to attack defendant's credibility on a collateral issue” ( Bellamy, 26 A.D.3d at 641, 809 N.Y.S.2d 287).
In view of our decision to reverse, we need not address defendant's remaining contentions, including those raised in his pro se supplemental brief.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.