| People v Washington |
| 2011 NY Slip Op 08404 [89 AD3d 1516] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tommy L.Washington, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May 2,2005. The judgment convicted defendant, upon a jury verdict, of assault in the first degree, gang assaultin the second degree and assault in the second 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 of assault inthe first degree (Penal Law § 120.10 [1]), gang assault in the second degree (§ 120.06)and assault in the second degree (§ 120.05 [2]). Defendant contends that he was denied a fairtrial based on the prosecutor's improper questions on cross-examination concerning whether theprosecution witnesses were lying or were liars. That contention is not preserved for our reviewinasmuch as defendant failed to object to those questions (see CPL 470.05 [2]), and wedecline to exercise our power to review defendant's contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). We note, however, that such questions were improper(see People v Paul, 229 AD2d 932 [1996]; People v Paul, 212 AD2d 1020, 1021[1995], lv denied 85 NY2d 912 [1995]; People v Edwards, 167 AD2d 864 [1990],lv denied 77 NY2d 877 [1991]). As this Court stated over 20 years ago, "[o]n numerousoccasions, we have forcefully condemned prosecutorial cross-examination which compels a defendantto state that witnesses lied in their testimony" (People v Eldridge, 151 AD2d 966, 966 [1989],lv denied 74 NY2d 808 [1989]). Unfortunately, we find it necessary once again to forcefullycondemn such improper conduct by the prosecutor.
Defendant's challenge to the legal sufficiency of the evidence is also unpreserved for our reviewbecause defendant made only a general motion for a trial order of dismissal that was not based on thegrounds set forth on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Clark, 42 AD3d 957, 958[2007], lv denied 9 NY3d 960 [2007]). In any event, that challenge is lacking in merit (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).We reject defendant's further contention that he was denied effective assistance of counsel. Viewing theevidence, the law and the circumstances of this case in totality and as of the time of the representation,we conclude that defendant received meaningful representation (see generally People v Baldi,54 NY2d 137, 147 [1981]). We have considered defendant's remaining contentions and [*2]conclude that they are lacking in merit. Present—Fahey, J.P.,Carni, Sconiers, Gorski and Martoche, JJ.