| People v Poole |
| 2008 NY Slip Op 07392 [55 AD3d 1349] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Christopher L.Poole, Appellant. (Appeal No.1.) |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered July 20,2005. The judgment convicted defendant, after a jury trial, of robbery in the first degree and robbery inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of robberyin the first degree (Penal Law § 160.15 [4]) and robbery in the second degree (§ 160.10[1]). Defendant contends that he was deprived of his right to present a defense when County Courtruled that he was precluded from cross-examining the People's witnesses on the subject of a shootingthat occurred at the residence of defendant's mother several hours after the robbery at issue. We noteat the outset that we reject the People's assertion that defendant failed to preserve his contention for ourreview. The record establishes that, in response to defense counsel's objection to the court's ruling, "thecourt expressly decided the question raised on appeal" (CPL 470.05 [2]). Nevertheless, we rejectdefendant's contention. According to defendant, the evidence of the shooting was admissible because itestablished a possible motive for the robbery victim to fabricate his testimony against defendant.Although "extrinsic proof tending to establish a reason to fabricate is never collateral and may not beexcluded on that ground" (People v Hudy, 73 NY2d 40, 56 [1988], abrogated on othergrounds by Carmell v Texas, 529 US 513 [2000]), the court may in its discretion exclude suchproof if it is too remote or speculative (seePeople v Garcia, 47 AD3d 830 [2008], lv denied 10 NY3d 863 [2008]; see alsoPeople v Retzer, 245 AD2d 1132 [1997], lv denied 91 NY2d 976 [1998]). Here, thecourt did not abuse its discretion in determining that the proposed cross-examination was toospeculative to establish a motive for fabrication (see Garcia, 47 AD3d at 831; People vOrtega, 292 AD2d 792 [2002], lv denied 98 NY2d 679 [2002]). Present—Smith,J.P., Lunn, Fahey and Peradotto, JJ.