| People v Parks |
| 2011 NY Slip Op 05199 [85 AD3d 557] |
| June 16, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Dwight Parks, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 13,2009, convicting defendant, after a jury trial, of two counts of assault in the second degree, andsentencing him to an aggregate term of six months, concurrent with five years' probation,unanimously affirmed.
The court properly exercised its discretion in precluding testimony purporting to show thatthe complainant threatened defendant several hours before the incident. It was within the court'sdiscretion to preclude this evidence as too speculative or conjectural to be presented to the jury(see e.g. People v Martinez, 177 AD2d 600, 601 [1991], lv denied 79 NY2d 829[1991]). Furthermore, even if the jury could have interpreted the cryptic remark as a threat, therewas no evidence that defendant knew about it. Where, as here, a defendant asserts a justificationdefense, a threat made by the alleged victim against the defendant may be relevant to the issue ofwho was the initial aggressor, even if the defendant was unaware of the threat (People vMiller, 39 NY2d 543, 549 [1976]). However, here the People conceded that the complainantmay have been the initial aggressor and argued that defendant was unjustified in the amount offorce he used. Therefore, the evidence of a possible threat had little or no probative value (see People v Barrow, 19 AD3d189 [2005], lv denied 6 NY3d 809 [2006]).
The court also properly exercised its discretion in precluding defendant from calling awitness to testify as to his own unrelated, violent encounter with the complainant. The courtpermitted defendant to testify as to his own knowledge of any violent acts by the complainant,including the act he wanted to establish by calling a witness. The court correctly determined thatthe proposed witness's testimony would have been cumulative, of little probative value, and anunnecessary distraction (see People v Levy, 186 AD2d 66, 67 [1992], lv denied80 NY2d 975 [1992]).
The court's limitations on defendant's use of certain hospital records related to another of thecomplainant's violent encounters were proper exercises of discretion. We note that defendantreceived a sufficient opportunity to inform the jury of the complainant's aggressive tendencies.
In any event, any error with respect to the any of the above-discussed evidentiary rulings[*2]was harmless (see People v Crimmins, 36 NY2d 230,241-242 [1975]). There was overwhelming evidence that, regardless of who was the initialaggressor, defendant used excessive force against the complainant. The excluded evidence hadlittle or no bearing on the principal issue in the case, which was whether the degree of force usedby defendant was justified.
Defendant's challenges to the constitutionality of the court's evidentiary rulings areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits.
Defendant's complaints about the court's instructions on interested witnesses and witnesscredibility are unpreserved (see People v Whalen, 59 NY2d 273, 280 [1983]), and wedecline to review them in the interest of justice. As an alternative holding, we would find thatviewed as whole, the court's charge was sufficient, under the circumstances of the case, to guidethe jury in making credibility assessments (see People v Francisco, 44 AD3d 870, 871 [2007], lvdenied 9 NY3d 1033 [2008]).
Defendant failed to preserve his complaints about the court's justification charge, and wedecline to review them in the interest of justice. As an alternative holding, we find that viewed asa whole, the justification charge conveyed the appropriate legal principles to the jury (seegenerally People v Fields, 87 NY2d 821 [1995]). Concur—Andrias, J.P., Friedman,Sweeny, Renwick and RomÁn, JJ.