| People v Lyon |
| 2010 NY Slip Op 06892 [77 AD3d 1338] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian P. Lyon,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered May 7,2008. The judgment convicted defendant, upon a jury verdict, of robbery in the third degree, resistingarrest, obstructing governmental administration in the second degree and harassment in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia,robbery in the third degree (Penal Law § 160.05). Defendant contends that County Court erredin allowing the prosecutor, on two occasions, to question defendant in violation of the court'sSandoval ruling. First, defendant contends that the court erred in allowing the prosecutor tocross-examine defendant with respect to his prior dealings with the arresting officer, thereby revealingdetails with respect to misdemeanor traffic convictions. Although we agree with defendant that theidentification by the prosecutor of those prior convictions improperly exceeded the scope of theSandoval ruling (see People v Beniquez, 215 AD2d 678, 679-680 [1995]), weconclude that the error is harmless (seePeople v Grant, 7 NY3d 421, 426 [2006]). The proof of defendant's guilt is overwhelming,and there is no significant probability that defendant would have been acquitted but for the error(see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Towsley, 53 AD3d 1083,1083-1084 [2008], lv denied 11 NY3d 795 [2008]).
Second, defendant contends that the court erred in allowing the prosecutor, onre-cross-examination, to question defendant with respect to his entire criminal record. We reject thatcontention. Where, as here, a defendant's testimony conflicts with evidence precluded by aSandoval ruling, "the defense 'opens the door' on the issue in question, and the [defendant] isproperly subject to impeachment by the prosecution's use of the otherwise precluded evidence"(People v Fardan, 82 NY2d 638, 646 [1993]; see People v Rodriguez, 85 NY2d586, 591 [1995]).
The contention of defendant that he was deprived of a fair trial based on prosecutorial misconducton summation is not preserved for our review (see CPL 470.05 [2]) and, in any event, is [*2]without merit. To the extent that the prosecutor vouched for thecredibility of witnesses on summation, we conclude that such conduct, although improper, was not soegregious as to deny defendant a fair trial (see People v White, 291 AD2d 842, 843 [2002],lv denied 98 NY2d 656 [2002]). The remaining instances of alleged prosecutorial misconducton summation were " 'either a fair response to defense counsel's summation or fair comment on theevidence' " (People v Green, 60 AD3d1320, 1322 [2009], lv denied 12 NY3d 915 [2009]). We reject the further contention ofdefendant that he was denied effective assistance of counsel. Defense counsel's failure to object to theallegedly improper comments by the prosecutor on summation does not constitute ineffective assistanceof counsel. As previously noted, defendant was not denied a fair trial by those comments in which theprosecutor vouched for the credibility of witnesses, and the remaining instances of alleged prosecutorialmisconduct on summation did not in fact constitute prosecutorial misconduct. With respect to thealleged ineffective assistance of counsel in connection with cross-examination concerning defendant'scriminal history, we conclude that, when viewed as a whole, defense counsel's efforts reflect " 'areasonable and legitimate strategy under the circumstances and evidence presented' " (People vTonge, 93 NY2d 838, 840 [1999]), and we thus conclude that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People vWorkman, 277 AD2d 1029, 1032 [2000], lv denied 96 NY2d 764 [2001]).
Finally, viewing the evidence in light of the elements of the crime of robbery in the third degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict with respect to that countis not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.