| People v Nunez |
| 2011 NY Slip Op 02423 [82 AD3d 1128] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ricardo Nunez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered January 7, 2010, convicting him of gang assault in the first degree and assault in thefirst degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Aloise, J.), of those branches of the defendant's omnibus motion whichwere to suppress identification testimony and physical evidence.
Ordered that the judgment is affirmed.
" '[A]s a general matter, the decision to stop an automobile is reasonable where the policehave probable cause to believe that a traffic violation has occurred,' even if the underlying reasonfor the stop was to investigate another matter unrelated to the traffic violation" (People vSluszka, 15 AD3d 421, 423 [2005], quoting People v Robinson, 97 NY2d 341,348-349 [2001]; see Whren v United States, 517 US 806, 810 [1996]). Here, the policestopped the defendant because he was talking on a cell phone while driving a motor vehicle,which is a violation of Vehicle and Traffic Law § 1225-c (2) (a). The showupidentification of the defendant was properly conducted several minutes after the defendant wasstopped (see People v Hill, 41 AD3d 733, 734 [2007]; People v Safford, 297AD2d 828 [2002]; People v Suarez, 201 AD2d 747 [1994]). After the defendant wasidentified as one of the perpetrators of the crime at issue, the police had probable cause to arresthim (see CPL 140.10 [1] [b]; People v De Bour, 40 NY2d 210, 223 [1976];People v Moore, 296 AD2d 426 [2002]). Accordingly, the Supreme Court properlydenied those branches of the defendant's omnibus motion which were to suppress identificationtestimony and physical evidence.
The defendant's contention that the verdict was repugnant because the jury found him guiltyof assault in the first degree while acquitting him of four counts of criminal possession of aweapon in the fourth degree is without merit. Viewing the elements of the crimes as charged tothe jury (see People v Tucker, 55 NY2d 1, 7 [1981]), the verdict was not repugnant, sincethe acquittal on the counts of criminal possession of a weapon in the fourth degree did not negateany of the elements of assault in the first degree (see People v Ariza, 77 AD3d 844[2010], lv denied 15 NY3d 951 [2010]; People v Moses, 36 AD3d 720 [2007]).[*2]
The defendant's contention that certain comments madeby the prosecutor during summation constituted reversible error is unpreserved for appellatereview, since he only made a general objection to the disputed remarks. "A party's failure tospecify the basis for a general objection renders the argument unpreserved" (People vTonge, 93 NY2d 838, 839-840 [1999]; see CPL 470.05 [2]; People v Balls,69 NY2d 641, 642 [1986]). In any event, the contention is without merit.
The Supreme Court providently exercised its discretion in prohibiting the defendant fromimpeaching the complainant, whom the defendant had called as his witness, since thecomplainant's testimony that he could not recall who had hit him did not affirmatively damagethe defendant's case (see CPL 60.35 [1]; People v Saez, 69 NY2d 802, 804[1987]; People v Fitzpatrick, 40 NY2d 44, 50 [1976]; People v Spurgeon, 63AD3d 863, 864 [2009]). The Supreme Court also properly ruled that defense counsel could notquestion the complainant about his manslaughter conviction. As a general rule, a party may notimpeach its own witness. Moreover, the information was only sought to discredit the witness,and not to "mitigate the more damaging effect" such revelation "would have . . . ifelicited on cross-examination" (People v Alcantara, 78 AD3d 721, 722 [2010]; seePeople v Guy, 223 AD2d 723, 724 [1996]; People v Minsky, 227 NY 94, 98 [1919]).
The defendant's remaining contentions are without merit. Covello, J.P., Dickerson, Eng andSgroi, JJ., concur.