| People v Carey |
| 2009 NY Slip Op 08632 [67 AD3d 925] |
| November 17, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Carey, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered October 2, 2007, convicting him of sexual abuse in the first degree (two counts), courseof sexual conduct against a child in the second degree, and endangering the welfare of a child,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress his oral andwritten statement made to law enforcement officials.
Ordered that the judgment is affirmed.
On appeal, the defendant challenges the voluntariness of his statements to law enforcementofficials. The hearing court properly determined that the defendant's oral and written statements,given after he was informed of, and waived, his Miranda rights (see Miranda vArizona, 384 US 436 [1966]), were voluntarily made, as the defendant failed to establishthat in making his statements to the police his "will [was] overborne and his capacity forself-determination critically impaired" (People v Latouche, 61 AD3d 702, 702 [2009] [internal quotationmarks omitted]).
The defendant's contentions that the prosecutor improperly vouched for the complainantduring his summation and improperly commented about the defendant's handwriting areunpreserved for appellate review (seePeople v Coleman, 62 AD3d 810 [2009]) and, in any event, are without merit. Thechallenged remarks were fair comment on the evidence, permissible rhetorical comment, orresponsive to defense counsel's summation (see People v Gillespie, 36 AD3d 626 [2007]).
The trial court properly exercised its discretion in precluding the testimony of the defendant'sexpert that the defendant "likely" suffered from blackouts after he drank. The admission andscope of expert testimony is addressed primarily to the discretion of the trial court (seePeople v Cronin, 60 NY2d 430 [1983]). The expert's testimony was speculative (cf. Shi Pei Fang v Heng Sang RealtyCorp., 38 AD3d 520 [2007]) and, in any event, irrelevant, as the defendant's failure toremember whether he committed the crimes charged had no impact on the question of his guiltor nonguilt.[*2]
Similarly, the court properly precluded the testimony of adefense witness that, after drinking alcohol, the defendant did things that he appeared not torecall later. This testimony was cumulative of the defendant's testimony (see generally People v Hortiz, 60AD3d 692 [2009]) and irrelevant to the question of the defendant's guilt or nonguilt.
We reject as without merit the defendant's argument that the complainant's grandmothershould have been allowed to testify that the complainant told her that she had lied toinvestigators who were investigating allegations of abuse by the boyfriend of the complainant'smother. Furthermore, the defendant's contention that his sister should have been allowed totestify that the complainant told her something different from what she testified to is withoutmerit. It is axiomatic that "the party who is cross-examining a witness cannot introduce extrinsicdocumentary evidence or call other witnesses to contradict a witness' answers concerningcollateral matters solely for the purpose of impeaching that witness' credibility" (People vRivers, 109 AD2d 758, 761 [1985]; People v Pavao, 59 NY2d 282, 288-289 [1983]).Moreover, "[t]he general rule is that the cross-examiner is bound by the answers of the witnessconcerning collateral matters" (People v Gonzalez, 100 AD2d 852, 853 [1984]; seePeople v Goggins, 64 AD2d 717 [1978]). Dillon, J.P., Florio, Balkin and Leventhal, JJ.,concur.