| People v Forte |
| 2010 NY Slip Op 01504 [70 AD3d 963] |
| February 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v IvanForte, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler,J.), rendered March 17, 2005, convicting him of murder in the second degree, criminalpossession of a weapon 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 affirmed.
The defendant contends that the trial court violated his constitutional rights to due processand to present witnesses in his own defense when it allowed a potential defense witness toinvoke his Fifth Amendment privilege against self-incrimination and refuse to testify. Thiscontention is unpreserved for appellate review (see People v Angelo, 88 NY2d 217, 222[1996]; People v Sullivan, 54 AD3d 882, 883 [2008]; People v Connelly, 32AD3d 863 [2006]). In any event, the evidence of the defendant's guilt, without reference to thealleged error, was overwhelming, and there is no reasonable possibility that the alleged errormight have contributed to the defendant's conviction. Thus, any error was harmless beyond areasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975]).
The defendant's contention that the trial court violated his constitutional rights to due processand confrontation, and to present witnesses in his own defense, by failing to declare a certaindefense witness hostile is unpreserved for appellate review (see People v Angelo, 88NY2d at 222; People v Dombroff, 44 AD3d 785, 787 [2007]). Moreover, the defendantabandoned this argument by examining the witness without renewing his application to have thewitness declared hostile, even though the trial court reserved decision on the application, whichwas made before the witness testified, on the ground that it could not issue a ruling before itheard from the witness (see People v Graves, 85 NY2d 1024, 1027 [1995]; People vMidura, 54 AD3d 877 [2008]; People v Leon-Ramos, 28 AD3d 679, 679-680[2006]). In any event, the witness was neither unwilling nor reluctant to testify (see People vMarshall, 220 AD2d 692, 693 [1995]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Angiolillo, Balkin and Lott, JJ., concur.