| People v Damon |
| 2010 NY Slip Op 08132 [78 AD3d 860] |
| November 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CliffordDamon, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered June 10, 2008, convicting him of murder in the second degree and attempted murder in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he validly waived his right to counsel, after an extensiveinquiry by the Supreme Court that established his ability to represent himself, and emphasized thedangers and disadvantages of proceeding without counsel (see People v Providence, 2 NY3d 579, 580-581 [2004]; People vSmith, 92 NY2d 516 [1998]).
The defendant's contention that hearsay testimony was improperly admitted against him isunpreserved for appellate review (see CPL 470.05 [2]). In any event, some of that testimonywas admissible pursuant to the state of mind exception to the hearsay rule (see People v Rose, 41 AD3d 742, 743[2007]). To the extent the admission of hearsay testimony was erroneous, the error was harmless, sincethere was overwhelming evidence of the defendant's guilt, and there is no reasonable possibility that thehearsay evidence might have contributed to the defendant's conviction (see People v Crimmins,36 NY2d 230, 241-242 [1975]).
The defendant did not preserve for appellate review his contention that his cross-examination bythe prosecutor deprived him of a fair trial, because the questions forced the defendant to characterizethe prosecution's witnesses as liars (see CPL 470.05 [2]). In any event, the defendant'scontention is without merit. The defendant denied the occurrence of events and his involvement in thoseevents as testified to by the People's witnesses. The defendant also volunteered that, in his view, thepolice witnesses lied. The defendant therefore created a "credibility contest" (People v Overlee,236 AD2d 133, 140 [1997]), and consistent with the prosecutor's duty to conduct a vigorouscross-examination, he was entitled to ask the defendant if the prosecution's witnesses were lying(id. at 138-139). Further, any error arising from the [*2]prosecutor's cross-examination of the defendant was harmless, as therewas overwhelming evidence of the defendant's guilt, and there was no significant probability that anyimpropriety in the prosecutor's cross-examination of the defendant affected the verdict (see Peoplev Crimmins, 36 NY2d at 242).
The defendant's contention that certain remarks made by the prosecutor during summation wereimproper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either didnot object to the comments (see People vAnderson, 24 AD3d 460 [2005]; People v Williams, 303 AD2d 772 [2003]), madeonly general objections (see People vFranklin, 64 AD3d 614, 615 [2009]; People v Boyce, 54 AD3d 1052, 1053 [2008]), or failed to requestadditional relief when the Supreme Court sustained his objections or gave curative instructions (seePeople v Heide, 84 NY2d 943, 944 [1994]; People v Medina, 53 NY2d 951, 953[1981]; People v Hollenquest, 48 AD3d592, 593 [2008]). In any event, reversal is not warranted, since the remarks did not deprive thedefendant of a fair trial (see People vPorco, 71 AD3d 791, 794 [2010], lv granted 15 NY3d 854 [2010]; People v Garcia, 66 AD3d 699, 700[2009]; People v Rudd, 62 AD3d729 [2009]). Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur.