| People v Liggan |
| 2009 NY Slip Op 03929 [62 AD3d 523] |
| May 19, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v StacyLiggan, Appellant. |
—[*1] Stacy Liggan, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Hilary Hassler of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered May 11, 2005,as amended May 20, 2005, convicting defendant, after a jury trial, of criminal possession of aweapon in the third degree, and sentencing him, as a persistent violent felony offender, to a termof 16 years to life, and judgment, same court (Carol Berkman, J., at suppression hearing; RuthPickholz, J., at jury trial and sentence), rendered December 14, 2005, convicting defendant ofassault in the first degree, attempted robbery in the first and second degrees and conspiracy inthe fourth degree, and sentencing him, as a persistent violent felony offender, to an aggregateterm of 25 years to life, concurrent with the prior sentence, unanimously affirmed.
At defendant's first trial, the court properly exercised its discretion in limiting defendant'stestimony regarding the alleged meaning of portions of an incriminating letter he wrote whileincarcerated pending trial. Although defendant asserts that he was entitled to testify as to what heintended to mean by certain phrases, the excluded questions did not call for such testimony, butessentially asked defendant to analyze or interpret the meaning of language that contained nocodes or obscure terminology requiring an explanation. The interpretation called for in defensecounsel's questions was in the nature of argument that would be appropriate if made by counselin summation, but not by a witness on the stand. Since defendant never made a timely assertionof a constitutional right to give the excluded testimony, his present constitutional claim isunpreserved (People v Lane, 7NY3d 888, 889 [2006]), and we decline to review it in the interest of justice. As analternative holding, we also reject it on the merits (see Crane v Kentucky, 476 US 683,689-690 [1986]). In any event, any error in the court's ruling was harmless under the standardsfor both constitutional and nonconstitutional error.
At the first trial, the court properly permitted the People to impeach their own witness with aprior inconsistent statement. In context, the witness's denial that defendant made anincriminating statement to her was affirmatively damaging to the People's case (see CPL60.35 [1]; People v Winchell, 98 AD2d 838, 841 [1983], affd 64 NY2d [*2]826 [1985]; compare People v Fitzpatrick, 40 NY2d 44,51-52 [1976]). In any event, any error in this ruling was harmless.
The court properly denied defendant's CPL 330.30 (2) motion to set aside the first verdict onthe ground of jury misconduct. During the trial, the court and all parties learned that one or morenews articles about a jailhouse fight between one of defendant's original codefendants and adefendant in a notorious unrelated case tangentially mentioned that the codefendant had pleadedguilty in this case. At that time, defendant's counsel declined the trial court's invitation toconduct an inquiry of the jurors, instead requesting that the court reiterate its admonition to thejurors to avoid reading news accounts about the trial. After the trial, it came to light that a jurorhad been aware of the codefendant's guilty plea, but had not discussed it with other jurors. Sincecounsel was aware, during the trial, of a potential danger of exposure of jurors to thisinformation, but declined a remedy that would have obviated the need for postverdictproceedings or a new trial, the postverdict disclosure was not a basis for setting aside the verdict(cf. People v Albert, 85 NY2d 851 [1995]; People v Kelly, 11 AD3d 133, 146-147 [2004], affd 5NY3d 116 [2005]).
The branch of defendant's motion to set aside the verdict that alleged he was convicted on animproper theory was contrary to the rule precluding jurors from impeaching their verdict withregard to their deliberative processes (see People v De Lucia, 20 NY2d 275 [1967]).
The hearing court properly denied defendant's motion to suppress a letter he wrote fromprison that was intercepted and copied by prison authorities. Since the interception metconstitutional standards, defendant was not entitled to exclusion of the letter on the ground thatprison authorities failed to comply with a Department of Correctional Services regulation (7NYCRR 720.3 [e] [1]) concerning the factual content of an authorization for interception (seeUnited States v Workman, 80 F3d 688, 698-699 [2d Cir 1996], cert denied 519 US938 [1996]). The exclusionary rule applies to a violation of a statute only where the purpose ofthe statute is to effectuate a constitutionally protected right (People v Taylor, 73 NY2d683, 690-691 [1989]; see also People v Patterson, 78 NY2d 711, 716-717 [1991]). Theregulation at issue appears to be a record-keeping requirement not directly implicating aconstitutional right. Moreover, there does not appear to be any authority for suppression ofevidence in a criminal case based on a violation of a mere administrative regulation rather than astatute. We note that in the civil context, a clear distinction is drawn between a statutoryviolation and a violation of a regulation, which, "lacking the force and effect of a substantivelegislative enactment," is merely some evidence of negligence (Bauer v Female Academy ofSacred Heart, 97 NY2d 445, 453 [2002]).
We have considered and rejected defendant's arguments regarding his second trial, his [*3]constitutional challenge to his persistent violent felony offenderadjudication, and his pro se claims. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli andFreedman, JJ.