| People v Gaviria |
| 2009 NY Slip Op 08032 [67 AD3d 701] |
| November 4, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Giovanni Gaviria, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered June 6, 2006, convicting him of attempted murder in the second degree, assault in thefirst degree, assault in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of assault inthe second degree and the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The Supreme Court providently exercised its discretion in denying the defendant's request toengage in certain cross-examination of a witness against him (see Delaware v VanArsdall, 475 US 673, 679 [1986]; People v Schwartzman, 24 NY2d 241, 244 [1969],cert denied 396 US 846 [1969]; People v Baez, 59 AD3d 635 [2009]; People v Francisco, 44 AD3d 870[2007]). Under the circumstances, the defendant's contention that he was deprived of hisconstitutional rights of confrontation and due process is without merit.
Viewing the record as a whole, the defendant received meaningful representation (seePeople v Baldi, 54 NY2d 137 [1981]; People v Constas, 59 AD3d 729 [2009]). The defense counselpresented a reasonable defense, interposed appropriate objections, and effectivelycross-examined witnesses (see People v Constas, 59 AD3d at 729; People v Smith, 12 AD3d 707[2004]).
Contrary to the defendant's contention, he was not deprived of a fair trial on the ground thatthe verdict sheet unduly emphasized the "guilty" option by listing it before the "not guilty"option. The verdict sheet, which included the offenses to be considered and the possible verdicts,complied with CPL 310.20, was entirely neutral, and did not unduly emphasize the "guilty"option (see People v Watts, 58AD3d 647, 648 [2009]; People v Manzano, 300 AD2d 679 [2002]; CPL 310.20 [2]).
As the People correctly concede, the defendant's conviction of assault in the second degreemust be vacated and that count dismissed as an inclusory concurrent count of assault in the firstdegree (see CPL 300.40 [3] [b]; Penal Law § 120.10 [1]; § 120.05 [1]; People v DeFreitas, 19 AD3d 506,507 [2005]).[*2]
The defendant's remaining contention is unpreserved forappellate review. Santucci, J.P., Chambers, Hall and Roman, JJ., concur.