| People v Garcia |
| 2008 NY Slip Op 00522 [47 AD3d 830] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gustavo Garcia, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Rhea A. Grob, andEric Z. Chang of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling J.),rendered October 26, 2005, convicting him of assault in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Prior to jury selection, the prosecutor made a motion in limine to preclude defense counselfrom cross-examining certain witnesses as to their immigration status. Defense counselcontended that the immigration status of these witnesses gave them a reason to cooperate withthe prosecution and fabricate their testimony. The trial court granted the motion, which thedefendant contends deprived him of his right to confront adverse witnesses and to present adefense.
While extrinsic proof tending to establish a motive to fabricate is never collateral and maynot be excluded on that ground, when the evidence is too remote or speculative of a motive tofabricate, the trial court may, in its discretion, exclude such proof (see People v Thomas,46 NY2d 100, 105 [1978]; People vMestres, 41 AD3d 618 [2007]; People v Walsh, 35 AD3d 637 [2006]; People v George,197 AD2d 588, 589 [1993]). Moreover, the cross-examination aimed at establishing a motive tofabricate must proceed upon some good-faith basis (see People v Farooq, 304 AD2d 772[2003]; People v Sandel, 299 AD2d 373, 374 [2002]; People v Ashner, 190AD2d 238, 247 [1993]).
Here, the proposed line of inquiry was too remote and speculative to infer a motive [*2]to fabricate (see People v Mestres, 41 AD3d 618 [2007]; People v Walsh, 35 AD3d 637[2006]; People v Martinez, 177 AD2d 600, 601-602 [1991]; People v Ayers, 161AD2d 770, 771 [1990]; see also People v Wright, 291 AD2d 577 [2002]; cf. People v Ocampo, 28 AD3d684 [2006]). Moreover, since defense counsel never identified which witnesses she sought toquestion about their immigration status, and did not establish some "reasonable basis"(People v Alamo, 23 NY2d 630, 633 [1969]) to believe that any of them were, in fact, inthis country illegally, the trial court providently exercised its discretion in precluding that line ofquestioning (see People v Mendez, 306 AD2d 143, 144 [2003]; People vRodriguez, 191 AD2d 723 [1993]; cf. People v Anonymous, 275 AD2d 210, 212[2000]).
While the challenged sentence is greater than that offered to the defendant in return for a pleaof guilty, sentences imposed after trial may be more severe than those proposed in connectionwith a plea bargain (see People v Pena, 50 NY2d 400, 412 [1980]; People vNorfleet, 146 AD2d 812, 813 [1989]). We conclude that the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Skelos, J.P., Santucci, Lifson andCarni, JJ., concur.