| People v Bryan |
| 2008 NY Slip Op 03661 [50 AD3d 1049] |
| April 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kareem Bryan, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Bellantoni, J.), rendered November 16, 2005, convicting him of burglary in the second degreeand sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the judgment shouldbe reversed and the indictment against him dismissed because the prosecution failed to presentcertain exculpatory evidence to the grand jury (see CPL 470.05 [2]; People v Brown,81 NY2d 798, 799 [1993]; People v Mosca, 294 AD2d 938, 939 [2002]; People vDeBaptiste, 286 AD2d 341 [2001]). In any event, the contention is without merit. Here, theprosecution was under no obligation to present the evidence in question as the evidence was notentirely exculpatory and would not have materially influenced the grand jury's investigation(see People v Williams, 298 AD2d 535 [2002]; People v Smith, 289 AD2d 1056,1057 [2001]; People v Bower, 222 AD2d 516 [1995]; People v Scruggs, 201AD2d 514, 515 [1994]).
The County Court providently exercised its discretion in permitting the prosecution to elicitlimited evidence regarding the defendant's arrest for uncharged crimes as it provided the jurywith necessary background information (see People v Philips, 30 AD3d 618, 619 [2006]; People vGordon, 308 AD2d 461 [2003]; People v Monzon, 289 AD2d 595 [2001]). In lightof the court's limiting instructions, that the testimony was provided as background and not toshow the defendant's propensity to commit the charged crimes, the probative value of thisevidence outweighed any prejudicial effect (see People v Tosca, 98 NY2d 660, 661[2002]; People v Clink, 32 AD3d862, 863 [2006]; People vMelendez, 8 AD3d 680, [*2]681 [2004]).
The defendant further contends that the testimony from police officers and a 911 operator, inwhich they recounted the description of the perpetrator given by the complainant and anotherwitness, constituted improper bolstering and inadmissible hearsay. These contentions areunpreserved for appellate review as the defendant did not object to the testimony on thesegrounds (see CPL 470.05 [2]; People v Cruz, 31 AD3d 660, 661 [2006]; People v Nanton, 18 AD3d 671,672 [2005]; People v Victor, 271 AD2d 556, 557 [2000]). The defendant also waivedthese contentions because defense counsel elicited similar testimony from the police officers oncross-examination and argued during summation that the complainant's description testimonywas not credible (see People vBlackman, 13 AD3d 640, 641 [2004]; People v Spragis, 5 AD3d 814, 815 [2004]). Moreover, contrary tothe defendant's contention, this evidence was not hearsay because it was offered not for its truth,but for the jury's evaluation of the opportunity of the complainant and the witness to haveobserved the crime sufficiently to have been able to report an accurate description of theperpetrator to the police (see People v Huertas, 75 NY2d 487, 493 [1990]; People v Ragunauth, 24 AD3d472, 473 [2005]; People v Ayala, 298 AD2d 397, 398 [2002]). In any event, anyerror in admitting this evidence was harmless since there was overwhelming evidence of thedefendant's guilt, and no significant probability that the error contributed to his conviction(see People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant's remaining contentions are without merit. Prudenti, P.J., Lifson, Covello andBalkin, JJ., concur.