| People v Ramlall |
| 2012 NY Slip Op 06824 [99 AD3d 815] |
| October 10, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KevinRamlall, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered April 27, 2011, convicting him of attempted assault in the second degree and resistingarrest, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court did not improvidently exercise its discretion in denying the defendant'srequest for an adjournment in order to seek the medical opinion of an expert witness. Thedefendant failed to show that the witness's anticipated testimony would be favorable to him andnot merely speculative, and that he exercised good faith and diligence in attempting to secure thewitness's presence at trial (see People vDeCampoamor, 91 AD3d 669, 671 [2012]; People v Nunez, 199 AD2d 285[1993]).
The defendant's challenges to the alleged instances of prosecutorial misconduct in theopening statement and in summation are unpreserved for appellate review (see People v World, 89 AD3d 966,967 [2011]; People v Masaguilar,86 AD3d 619, 620 [2011]; People vMuniz, 44 AD3d 1074 [2007]). In any event, most of the remarks now challenged onappeal were proper. Although some of the prosecutor's comments were improper, theyconstituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975];People v World, 89 AD3d at 967; People v Ortiz, 46 AD3d 580, 581 [2007]).
We also reject the defendant's contention that the People's amended bill of particulars wasdeficient. A criminal bill of particulars is not a discovery device, but merely serves to clarify theindictment (see People v Davis, 41 NY2d 678, 680 [1977]; People v Zurita, 64 AD3d 800,801 [2009]; People v Earel, 220 AD2d 899 [1995], affd 89 NY2d 960 [1997]). Abill of particulars therefore need not set forth the evidence that the People intend to introduce attrial (see People v Zurita, 64 AD3d at 801; People v Earel, 220 AD2d at 899;People v Bignall, 195 AD2d 997, 997-998 [1993]). Here, the defendant failed todemonstrate that the People's amended bill of particulars caused any prejudice to his ability toadequately prepare for, and defend himself at, the trial (see People v Zurita, 64 AD3d at800; People v Bignall, 195 AD2d at 997-998).[*2]
The Supreme Court properly precluded the defendantfrom eliciting testimony from a police officer that the defendant made a certain self-serving,exculpatory statement to her. " 'The general rule is that a party's self-serving statement isinadmissible at trial when offered in his or her favor, and it may not be introduced either throughthe testimony of the party or through the testimony of a third person' " (People v Roberts, 94 AD3d 1151,1151 [2012], lv denied 19 NY3d 976 [2012], quoting People v Oliphant, 201AD2d 590, 590-591 [1994]; see Peoplev Haddock, 79 AD3d 1148, 1149 [2010]; People v Pearson, 28 AD3d 587 [2006]). Moreover, although "adeclaration against the penal interest of the maker" is admissible because "a statement assertingmatters directly endangering one's penal interest by admitting facts that may lead to criminalliability is unlikely to be deliberately false" (People v Settles, 46 NY2d 154, 167 [1978]),the defendant's statement that he had a "dispute" with the complainant was too ambiguous to beagainst penal interest or to be judged either trustworthy or reliable (see People v Simmons, 84 AD3d1120, 1121 [2011]).
The defendant's remaining contentions are without merit. Eng, P.J., Rivera, Hall and Sgroi,JJ., concur.