| People v Spencer |
| 2011 NY Slip Op 06390 [87 AD3d 751] |
| August 30, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Spencer, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Sharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered December 10, 2007, convicting him of criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree (two counts), assault in the thirddegree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Following an altercation with a third party, the defendant allegedly punched the complainant,an off-duty police officer who was outside his home, and then brandished a gun at him. Thecomplainant subdued the defendant, and contacted other police officers, who arrested thedefendant. At trial, the defendant claimed that the complainant had falsely implicated him, andthat it was the third party who actually possessed the gun. The defendant sought to establish thatthe reason the complainant falsely implicated him was because the complainant and the thirdparty had a friendly relationship, that they drag raced cars together, and that the complainantallowed the third party to deal drugs in front of his home.
"While extrinsic proof tending to establish a motive to fabricate is never collateral and maynot be excluded on that ground, when the evidence is too remote or speculative of a motive tofabricate, the trial court may, in its discretion, exclude such proof" (People v Garcia, 47 AD3d 830,831 [2008]; see People v Thomas, 46 NY2d 100, 105 [1978]; People v Mestres, 41 AD3d 618[2007]). Moreover, there must be a good faith basis to support the motive to fabricate (seePeople v Hudy, 73 NY2d 40, 57 [1988]; People v Garcia, 47 AD3d at 831; People v Ocampo, 28 AD3d 684,685 [2006]; People v Sandel, 299 AD2d 373, 374 [2002]).
Here, during the defendant's case, defense counsel stated in chambers that the defendantwould testify as to his personal observations of the complainant drag racing cars with the thirdparty, and the third party dealing drugs in front of the complainant's home. Upon that offer ofproof, a good faith basis establishing the complainant's motive to fabricate existed (seePeople v Ocampo, 28 AD3d at 686). Contrary to the trial court's conclusion, this proofshould not have been excluded on the basis that it was collateral, as such exclusion goes directlyto the defendant's [*2]constitutional right to present a defense(see People v Hudy, 73 NY2d at 57-58). Nor should the trial court have excluded theproof out of concern for the complainant's reputation (see People v Ashner, 190 AD2d238, 248 [1993]). While the People contend that the evidence tending to establish thecomplainant's motive to fabricate was too remote and speculative, we disagree. Nevertheless, weconclude that the error was harmless beyond a reasonable doubt (see People v Crimmins,36 NY2d 230, 240-241 [1975]; People vTaylor, 40 AD3d 782, 785-786 [2007]). The complainant's testimony was supported byother witnesses who observed the incident, making the evidence of guilt overwhelming (cf.People v Ocampo, 28 AD3d at 686; People v Ashner, 190 AD2d at 248). Moreover,there is no reasonable possibility that the error might have contributed to the defendant'sconviction.
The defendant's contentions regarding the alleged bias or prejudice of the trial court arepartly based on matter outside the record. To the extent that those contentions are based onmatter outside the record, they are not reviewable on direct appeal from the judgment ofconviction (see People v Cass, 79AD3d 768, 770 [2010]; People vAlston, 77 AD3d 762, 763 [2010]). To the extent that these contentions are reviewable,the record indicates that the trial court did not evince impermissible prejudice or bias. Althoughthe trial court sustained a number of objections, most of the objections were properly sustained,and the "trial judge possesses the discretion to become involved in witness examination to theextent necessary to clarify issues and proof, and to ensure the orderly and expeditious progress ofthe trial" (People v Prado, 1 AD3d533, 535 [2003], affd 4 NY3d 725 [2004]; see People v Yut Wai Tom, 53NY2d 44, 56 [1981]; People v Moulton, 43 NY2d 944, 945-946 [1978]). However, wecaution the trial court about excessively interfering in the course of the trial, as "there may begreater risk of prejudice from overintervention than from underintervention" (People v YutWai Tom, 53 NY2d at 57).
The trial court did not err in admitting into evidence a tape of a 911 emergency call made byone of the witnesses, the wife of the complainant. Contrary to the defendant's contention, thattape was properly authenticated (seePeople v McPherson, 70 AD3d 1353, 1354 [2010]). Further, the trial court did not err infinding that the tape was admissible under the excited utterance and present sense impressionexceptions to the hearsay rule (seePeople v Coad, 60 AD3d 963, 963-964 [2009]; People v Dominick, 53 AD3d 505, 505-506 [2008]; People v Davis, 49 AD3d 895, 896[2008]).
The defendant contends that certain of the prosecutor's summation remarks deprived him of afair trial. However, the defendant failed to object during summation when the prosecutorquestioned whether the complainant would place his job and liberty at risk in order to falselyimplicate the defendant and when he referred to a juvenile delinquency adjudication as a felony.Consequently, those challenges are not preserved for appellate review, and we decline to reviewthem in the exercise of our interest of justice jurisdiction (see CPL 470.05 [2]; Peoplev Tonge, 93 NY2d 838, 839-840 [1999]; People v Salnave, 41 AD3d 872, 874 [2007]). The remainingsummation comments challenged by the defendant constituted fair comment on the evidence orwere responsive to arguments and theories presented in the defense summation (see People v Perez, 77 AD3d 974[2010]; People v Gordon, 306 AD2d 422 [2003]; People v Turner, 214 AD2d594 [1995]).
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Belen andChambers, JJ., concur.