| People v Bahamonte |
| 2011 NY Slip Op 07938 [89 AD3d 512] |
| November 10, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Bahamonte, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered July 2,2010, convicting defendant, after a jury trial, of attempted assault in the first degree, assault inthe second degree, and two counts of criminal possession of a weapon in the second degree, andsentencing him, as a second felony offender, to an aggregate term of 10 years, unanimouslyaffirmed.
Defendant was not deprived of a fair trial by the People's questioning of their civilianwitnesses about their reluctance to testify. Under the circumstances of the case, includingdefendant's attacks on the witnesses' credibility, it was appropriate for the prosecutor to elicitbrief, nonprejudicial testimony that the witnesses did not wish to testify (see People v Howard, 7 AD3d 314[2004], lv denied 3 NY3d 675 [2004]; People v Wortherly, 68 AD2d 158,163-164 [1979]). Furthermore, the prosecutor had a good faith basis for believing that defendanthad tampered with witnesses. Accordingly, the prosecutor appropriately made limited attempts toelicit defendant's acts of witness-tampering. Had any of these witnesses revealed such acts, thattestimony would have been admissible as consciousness-of-guilt evidence. In any event, theprosecutor's attempts were unsuccessful, and they did not cause defendant any prejudice.
The prosecutor's summation remarks about the witnesses' fear of defendant were made inresponse to defense counsel's attack on the witnesses' credibility, and were a fair comment basedupon the evidence (see Howard, 7 AD3d at 314). The prosecutor's comments ondefendant's gang membership were based on the evidence, and that evidence was relevant to theissue of motive.
In addition, defendant challenges the portions of the prosecutor's summation and the court'scharge that dealt with defendant's alleged disappearance for several weeks after the crime, andthe consciousness-of-guilt inference that could be drawn therefrom. These arguments areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits. There was a sufficient evidentiary basis for the summationremarks and the corresponding jury instruction. Concur—Saxe, J.P., Sweeny, DeGrasse,Manzanet-Daniels and RomÁn, JJ.