| People v Agostini |
| 2011 NY Slip Op 03752 [84 AD3d 1716] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BenedictAgostini, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered July15, 2009. The judgment convicted defendant, upon a jury verdict, of manslaughter in the firstdegree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and criminal possession of aweapon in the third degree (§ 265.02 [1]), defendant contends that he was denied a fairtrial based on the prosecutor's cross-examination of his wife concerning her prior employment asan exotic dancer. We agree with defendant that such questions were improper. Employment as anexotic dancer does not constitute a prior bad act for the purposes of cross-examination, and thosequestions were not relevant to any other issue in the case. We conclude, however, "that theprosecutor's misconduct did not cause such substantial prejudice to the defendant that he hasbeen denied due process of law" (People v Stabell, 270 AD2d 894, 894 [2000], lvdenied 95 NY2d 804 [2000] [internal quotation marks omitted]; see People v Rubin,101 AD2d 71, 77 [1984], lv denied 63 NY2d 711 [1984]; People v Mott, 94AD2d 415, 418-419 [1983]). "In this case, the misconduct was not pervasive and was limited innature" (Rubin, 101 AD2d at 77). Defendant's further contention that he was denied a fairtrial based upon two identical instances of prosecutorial misconduct is not preserved for ourreview (see CPL 470.05 [2]) and, in any event, it is without merit. Although CountyCourt overruled defense counsel's objection with respect to the first of those instances, itresponded to his subsequent objection by giving the jury a curative instruction. Defense counselneither objected to that instruction nor moved for a mistrial.
We reject defendant's contention that his right of confrontation was violated when the courtlimited his cross-examination of a police detective regarding the methods used by the police totake witness statements. That detective interviewed only one witness and was not present for theinterviews of other witnesses, and defense counsel was able to cross-examine all witnessesregarding the inconsistencies between their trial testimony and their statements to the police.Thus, under the circumstances of this case, we conclude that the court did not abuse its discretionin limiting defendant's cross-examination of the detective in question (see generally [*2]People v Taylor, 214 AD2d 757 [1995], lv denied 87NY2d 851 [1995]). Finally, the sentence is not unduly harsh or severe. Present—Scudder,P.J., Fahey, Carni, Sconiers and Martoche, JJ.