| People v Smith |
| 2009 NY Slip Op 03377 [61 AD3d 579] |
| April 28, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RemySmith, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered May 13, 2008,convicting defendant, after a jury trial, of assault in the first degree (two counts), attemptedcoercion in the first degree and criminal possession of a weapon in the second degree, andsentencing her to an aggregate term of eight years, unanimously affirmed.
The court instructed the jury that "if you find [the victim] was truthful and accurate in hertestimony to you, her testimony without any other eyewitness to what happened inside the car,under the law satisfies the proof beyond a reasonable doubt." Viewed in isolation, this wasincorrect, because it omitted any reminder to the jury that such testimony, even if truthful andaccurate, would still have to satisfy the elements of the crime beyond a reasonable doubt; inparticular, intent was a major issue in the case. However, the charge as a whole conveyed theproper standard and was not constitutionally defective (see People v Umali, 10 NY3d417, 426-427 [2008]; People v Drake, 7 NY3d 28, 33 [2006]). The challenged languagewas both immediately preceded and immediately followed by thorough instructions on therequirement that every element be proven beyond a reasonable doubt. The charge was notcontradictory, because the offending language was plainly delivered in the context of explainingthat the People were not obligated to call more than one witness. Intent was the subject of adetailed instruction by the court as well as extensive summation comment, and the isolatedlanguage at issue could not have misled the jury into believing that in this case the issue of intentturned only on the victim's credibility.
The court properly exercised its discretion in precluding defense counsel from making asummation argument positing an alternate scenario that would have required the jury to drawexcessively speculative inferences from the evidence (see People v Charles, 61 NY2d321, 329 [1984]; People v Blount, 286 AD2d 649 [2001], lv denied, 97 NY2d701 [2002]). Since defendant never asserted a constitutional right to make this argument, herpresent constitutional claim is unpreserved (see People v Umali, 10 NY3d at 428-429;People v Lane, 7 NY3d 888, 889 [2006]), and we decline to review it in the interest ofjustice. As an alternative holding, we also reject it on the merits. In any event, any error,constitutional or otherwise, was harmless. Defendant was not prejudiced by the court's ruling,because the precluded argument had little or [*2]no chance ofpersuading the jury, and because it would have opened the door to damaging uncharged crimesevidence that the court had excluded.
Defendant's remaining contentions are unpreserved and we decline to review them in theinterest of justice. As an alternative holding, we also reject them on the merits.Concur—Saxe, J.P., Friedman, Moskowitz, Freedman and Richter, JJ.