| People v Nappi |
| 2011 NY Slip Op 03480 [83 AD3d 1592] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donato Nappi,Appellant. |
—[*1] John H. Crandall, Sr., District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered March15, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the third degree.
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 ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Viewing theevidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's contention that the verdict is against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant'schallenge to the legal sufficiency of the evidence before the grand jury "is not properly before uson this 'appeal from an ensuing judgment of conviction based upon legally sufficient trialevidence' " (People v McCullough, 83 AD3d 1438, 1438, 2011 NY Slip Op 02584[2011]). We reject defendant's further contention that the integrity of the grand jury was impairedinasmuch as the People have no duty "to present all evidence in their possession that is favorableto [defendant]" (People v Lancaster, 69 NY2d 20, 26 [1986], cert denied 480 US922 [1987]; see also People v Bean,66 AD3d 1386 [2009], lv denied 14 NY3d 769 [2010]).
Defendant contends that County Court erred in allowing his wife, a prosecution witness, togive certain testimony because it violated the marital privilege (see CPLR 4502 [b]; CPL60.10; People v Fediuk, 66 NY2d 881, 883 [1985]). We reject that contention inasmuchas defendant's words and actions at issue were in furtherance of a criminal enterprise (seegenerally People v Smythe, 210 AD2d 887 [1994], lv denied 85 NY2d 943 [1995];People v Watkins, 63 AD2d 1033, 1034 [1978], lv denied 45 NY2d 785 [1978],cert denied 439 US 984 [1978]). In any event, any error with respect to that testimony isharmless inasmuch as the proof of defendant's guilt was overwhelming and there is no significantprobability that he would have been acquitted but for the error (see People v Marinaccio, 15 AD3d932 [2005]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).Defendant further contends that reversal is required because the evidence at trial with respect tothe date of the offense was at variance with the date alleged in the [*2]indictment. We reject that contention. "An indictment must contain. . . [a] statement in each count that the offense charged therein was committed on,or on or about, a designated date, or during a designated period of time" (CPL 200.50 [6][emphasis added]). Here, the indictment alleged that the offense occurred "on or about the 5thday of January, 2009." Although evidence was presented at trial with respect to defendant'sconduct during a period of time prior to that date, reversal is not required because "[t]he time ofthe offense is not a material element of the offense and the variance is relatively minor" (People v Davis, 15 AD3d 920, 921[2005], lv denied 4 NY3d 885 [2005], 5 NY3d 787 [2005]).
The court properly refused to suppress the gun and ammunition that was seized fromdefendant's residence by his parole officer. A defendant's parole officer may conduct a warantlesssearch where "the conduct of the parole officer was rationally and reasonably related to theperformance of the parole officer's duty" (People v Huntley, 43 NY2d 175, 181 [1977]).We conclude that the parole officer's search of the residence was rational and reasonably relatedto the performance of his duty of preventing "parole violations for the protection of the publicfrom the commission of further crimes" (id.; see People v Maynard, 67 AD3d 1391 [2009], lv denied 14NY3d 890 [2010]; People vJohnson, 54 AD3d 969, 970 [2008]). The parole officer had a rational and reasonablebasis to believe a gun would be located in the residence based on the information given to him bydefendant's wife (see People v Felder, 272 AD2d 884 [2000], lv denied 95 NY2d905 [2000]), and the fact that police officers assisted after the gun was found by obtaining awarrant to search the remainder of the premises did not render the initial search by the paroleofficer a police operation (see Johnson, 54 AD3d at 970).
Contrary to defendant's contention, the court properly precluded defendant fromcross-examining a prosecution witness concerning certain collateral matters. "The trial court hasbroad discretion to limit the scope of cross-examination when the questions . . .concern collateral issues" (People vFrancisco, 44 AD3d 870, 870 [2007], lv denied 9 NY3d 1033 [2008]; seePeople v Neal, 294 AD2d 869 [2002], lv denied 98 NY2d 700 [2002]). Likewise, thecourt properly precluded defendant from calling certain witnesses to testify inasmuch as thattestimony would also have concerned collateral matters. A defendant may not " 'introduceextrinsic evidence on a collateral matter solely to impeach [the] credibility' " of a witness (People v Simmons, 21 AD3d 1275[2005], lv denied 6 NY3d 781 [2006], quoting People v Alvino, 71 NY2d 233,247 [1987]). Defendant failed to preserve for our review his further contention that theprosecutor engaged in misconduct by introducing evidence of his prior bad acts despite the factthat no Molineux hearing had been conducted inasmuch as he never objected to theevidence on that ground (see People v Fyffe, 249 AD2d 938 [1998], lv denied 92NY2d 897 [1998]; People v Thomas, 226 AD2d 1071 [1996], lv denied 88 NY2d995 [1996]). The majority of defendant's additional contentions regarding alleged instances ofprosecutorial misconduct are also unpreserved for our review (see CPL 470.05 [2]), andwe decline to exercise our power to review those contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). We have considered defendant's remainingcontentions, including his contention with respect to prosecutorial misconduct insofar as it ispreserved for our review, and we conclude that they are without merit. Present—Centra,J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.