The purpose of CPL § 440.10 is to provide a means by which criminal defendants can inform the court of facts that were not reflected in the record and were unknown at the time of judgment, and that would as a matter of law undermine the judgment. People v. Maffei, 35 N.Y.3d 264, 269, 127 N.Y.S.3d 403, 150 N.E.3d 1169 (2020) (". . . providing a vehicle specifically for the investigation of claims dependent on matters dehors the direct record . . ."); People v. Fuller, 28 Misc. 3d 1144, 1146, 904 N.Y.S.2d 896 (Sup. Ct. 2010); People v. Singh, 147 A.D.3d 787, 788, 47 N.Y.S.3d 52 (2d Dept 2017) ("CPL 440.10 . . . is designed for the purpose of developing matters dehors the trial record.") A motion pursuant to CPL § 440.10 is not a vehicle for a second appeal.
With respect to defendant's contention that the court erred in permitting the prosecutor to present testimony on redirect examination of a police investigator concerning actions taken by the police to ascertain the shooter's identity, we conclude that the court properly determined that defense counsel opened the door to that testimony during cross-examination of the investigator (seePeople v. Gonzales , 145 A.D.3d 1432, 1433, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ). "Inasmuch as defendant's cross-examination of a witness may have created a misimpression, the People were entitled to correct that misimpression on redirect examination" ( People v. Paul , 171 A.D.3d 1467, 1469, 99 N.Y.S.3d 529 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 681, 130 N.E.3d 1291 [2019], reconsideration denied 34 N.Y.3d 953, 110 N.Y.S.3d 625, 134 N.E.3d 624 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 1151, 206 L.Ed.2d 203 [2020] ; seePeople v. Singh , 147 A.D.3d 787, 787, 47 N.Y.S.3d 52 [2d Dept. 2017], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ). Defendant next contends that the court erred in permitting a certain witness to identify him for the first time at trial.
, we conclude that the court properly determined that defense counsel opened the door to that testimony during cross-examination of the investigator (see People v Gonzales, 145 A.D.3d 1432, 1433 [4th Dept 2016], lv denied 29 N.Y.3d 1079 [2017]). "Inasmuch as defendant's cross-examination of a witness may have created a misimpression, the People were entitled to correct that misimpression on redirect examination" (People v Paul, 171 A.D.3d 1467, 1469 [4th Dept 2019], lv denied 33 N.Y.3d 1107 [2019], reconsideration denied 34 N.Y.3d 953 [2019], cert denied - U.S. -, 140 S.Ct. 1151 [2020]; see People v Singh, 147 A.D.3d 787, 787 [2d Dept 2017], lv denied 29 N.Y.3d 1037 [2017]) . Defendant next contends that the court erred in permitting a certain witness to identify him for the first time at trial.
"[A] trial court should decide ‘door-opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading, and what if any otherwise inadmissible evidence is reasonable necessary to correct the misleading impression" ( People v. Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 ). Here, the defendant opened the door to this testimony by eliciting incomplete information from his expert witness relating to the sentence for that crime (seePeople v. Lowe, 166 A.D.3d 901, 903, 88 N.Y.S.3d 214 ; People v. Singh, 147 A.D.3d 787, 787, 47 N.Y.S.3d 52 ; People v. Vazquez, 28 A.D.3d 1100, 1100–1101, 813 N.Y.S.2d 613 ). The defendant's contention that certain remarks or actions by the prosecutor during the cross-examination of defense witnesses deprived him of a fair trial is partially preserved for appellate review (see CPL 470.05[2] ).
"[A] trial court should decide 'door-opening' issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading, and what if any otherwise inadmissible evidence is reasonable necessary to correct the misleading impression" (People v Massie, 2 N.Y.3d 179, 184). Here, the defendant opened the door to this testimony by eliciting incomplete information from his expert witness relating to the sentence for that crime (see People v Lowe, 166 A.D.3d 901, 903; People v Singh, 147 A.D.3d 787, 787; People v Vazquez, 28 A.D.3d 1100, 1100-1101). The defendant's contention that certain remarks or actions by the prosecutor during the cross-examination of defense witnesses deprived him of a fair trial is partially preserved for appellate review (see CPL 470.05[2]).
"[A] trial court should decide 'door-opening' issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete or misleading, and what if any otherwise inadmissible evidence is reasonable necessary to correct the misleading impression" (People v Massie, 2 N.Y.3d 179, 184). Here, the defendant opened the door to this testimony by eliciting incomplete information from his expert witness relating to the sentence for that crime (see People v Lowe, 166 A.D.3d 901, 903; People v Singh, 147 A.D.3d 787, 787; People v Vazquez, 28 A.D.3d 1100, 1100-1101).
Defense counsel opened the door to this previously precluded evidence by creating an impression, during cross-examination, that the witness had barely seen any impropriety in the defendant's treatment of the victim over the years ( seePeople v. Nicosia, 18 A.D.3d 673, 795 N.Y.S.2d 335 ). Moreover, jurors are presumed to have followed a court's limiting instructions, and any prejudicial impact was minimized here by the trial court's sufficient instructions ( seePeople v. Singh, 147 A.D.3d 787, 787–788, 47 N.Y.S.3d 52 ). The defendant's contention that he was deprived of the effective assistance of counsel also is without merit ( seePeople v. Ambers, 26 N.Y.3d 313, 320, 22 N.Y.S.3d 400, 43 N.E.3d 757 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Nonetheless, at trial the prosecution was permitted to submit evidence to the jury that, two days before that charged incident, a neighbor of the victim's girlfriend heard gunshots on the street and observed an individual getting into a silver SUV, which had been parked behind the Trailblazer, before both vehicles drove away.Contrary to the People's contention, the cross-examination of a law enforcement witness by defense counsel did not create a misleading impression that projectile holes found in the driver's side of the Trailblazer occurred during the charged shooting (cf.People v. Singh , 147 A.D.3d 787, 787, 47 N.Y.S.3d 52 [2d Dept. 2017], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017] ). In response to defense counsel's questions, the witness confirmed that the projectile holes in the driver's side were "older" and were made possibly days or weeks before the charged shooting.
Moreover, the jurors are presumed to have followed a court's limiting instructions. Any prejudicial impact was minimized by the trial court's repeated instructions that the jury was not permitted to consider such prior criminal conduct or conviction as evidence of the defendant's guilt in this case or evidence that the defendant is a person disposed to commit such crimes, and could only consider the conduct or conviction to evaluate the defendant's truthfulness at this trial (seePeople v. Morris, 21 N.Y.3d 588, 598, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Singh, 147 A.D.3d 787, 787–788, 47 N.Y.S.3d 52 ). The defendant's contention that the jury verdict on the count of driving while ability impaired by alcohol in violation of Vehicle and Traffic Law § 1192(1) was legally repugnant is unpreserved for appellate review, as she failed to raise this issue before the jury was discharged (seePeople v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 ; People v. Brown, 164 A.D.3d 695, 79 N.Y.S.3d 568 ; People v. Driver, 154 A.D.3d 958, 960, 64 N.Y.S.3d 222 ).
Moreover, it was not improper for the prosecutor to omit, from his summary to the grand jury of the proffered testimony of one of the defense witnesses, those portions of the proffered testimony which would have constituted impermissible hearsay (see People v Swamp, 84 NY2d 725, 730; People v Simon, 101 AD3d 908, 909). The defendant's remaining contentions are not subject to review on direct appeal because they involve allegations that are dehors the record, which should be raised on a motion to vacate the judgment pursuant to CPL 440.10 (see People v Jackson, 29 NY3d 18, 24; People v Flores, 151 AD3d 740, 741; People v Singh, 147 AD3d 787, 788; People v Macaluso, 144 AD3d 947, 947; People v Morrow, 143 AD3d 919, 920; People v Bruno, 127 AD3d 986, 987). CHAMBERS, J.P., HALL, DUFFY and BARROS, JJ., concur.