| People v Arriaga |
| 2010 NY Slip Op 07557 [77 AD3d 846] |
| October 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alejandro Arriaga, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Lori Glachman, andRose L. Amandola of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered June 24, 2008, convicting him of attempted assault in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly precluded defensecounsel from cross-examining a prosecution witness concerning an alleged prior incident ofdomestic violence between the witness and his wife, because counsel failed to establish agood-faith factual basis for the inquiry (see People v Bennett, 50 AD3d 1047 [2008]; People v Olibencia, 45 AD3d 607,608 [2007]; People v Dellarocco, 115 AD2d 904, 905 [1985]).
The defendant's contention that the Supreme Court erred in charging the jury onconsciousness of guilt is without merit. The evidence, inter alia, of the defendant's flightprovided a sufficient factual predicate for such a jury instruction (see People v Solimini, 69 AD3d657 [2010]; People vCartledge, 50 AD3d 1555, 1556 [2008]; People v Robinson, 10 AD3d 696 [2004]; People v Blasini,253 AD2d 886 [1998]; People v Shepherd, 176 AD2d 369 [1991]). The defendant's claimthat the language of the consciousness of guilt charge was improper and misleading isunpreserved for appellate review (see CPL 470.05 [2]; People v Valerio, 70 AD3d 869,870 [2010]; People v Flores, 14AD3d 351 [2005]; People v Stanley, 235 AD2d 559 [1997]; People v Shaw,111 AD2d 415, 417 [1985]). In any event, the Supreme Court's charge "conveyed the properstandard of law and did not confuse or mislead the jury" (People v London, 248 AD2d554, 555 [1998]). The Supreme Court instructed the jury on the weight to be given to theevidence, properly left to the jury the question of whether the evidence indicated consciousnessof guilt, and discussed the possibility of an "innocent explanation" for the conduct at issue(see People v Solimini, 69 AD3d at 658; People v Shepherd, 176 AD2d at 370).The Supreme Court also properly instructed the jury that evidence of consciousness of guilt, onits own, may never be the basis for a finding of guilt (see People v Robinson, 10 AD3d 696 [2004]).
The defendant's contention that the prosecutor improperly commented on the consciousnessof guilt evidence during summation is unpreserved for appellate review (see CPL 470.05[2]; [*2]People v James, 72 AD3d 844, 845 [2010], lvdenied 15 NY3d 752 [2010]; Peoplev Boyce, 54 AD3d 1052, 1053 [2008]). In any event, the challenged remarks constitutedfair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109 [1976]; People v Parrish, 71 AD3d 697[2010]). Mastro, J.P., Dickerson, Eng and Lott, JJ., concur.