| People v Dunston |
| 2012 NY Slip Op 07687 [100 AD3d 769] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Dunston, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.),rendered February 2, 2011, convicting him of reckless endangerment in the first degree, recklessendangerment in the second degree, criminal possession of a weapon in the second degree (twocounts), criminal possession of a weapon in the third degree, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contentions that the evidence waslegally insufficient to support the jury's verdict with respect to the counts of recklessendangerment in the first degree under Penal Law § 120.25 (count 1), criminal possessionof a weapon in the second degree under Penal Law § 265.03 (3) (count 3), and criminalpossession of a weapon in the second degree under Penal Law § 265.03 (1) (b) (count 4)(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d 10 [1995]).In any event, viewing the evidence in the light most favorable to the prosecution (see Peoplev Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt on those counts beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt onthose counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
It was improper for the trial court to permit the People to impeach their own witness since histestimony did not tend to disprove a material issue of the case (see CPL 60.35; Peoplev Fitzpatrick, 40 NY2d 44, 52 [1976]). Nevertheless, we conclude that such error washarmless because there was overwhelming evidence of the defendant's guilt, and no significantprobability that the jury would have acquitted the defendant had it not been for the error (seePeople v Saez, 69 NY2d 802, 804 [1987]; People v Crimmins, 36 NY2d 230, 242[1975]; People v Murillo, 256 AD2d 423, 424 [1998]; People v Comer, 146AD2d 794, 795 [1989]). For the same reason, while the trial court erred in admitting certain[*2]hearsay testimony, such error was also harmless (seePeople v Crimmins, 36 NY2d at 241-242; People v Harvey, 270 AD2d 959, 960[2000]).
The defendant's contention that he was deprived of a fair trial due to prosecutorialmisconduct is unpreserved for appellate review (see CPL 470.05 [2]; People v Romero, 7 NY3d 911,912 [2006]; People v Harris, 98 NY2d 452, 492 [2002]; People v Tonge, 93NY2d 838, 839-840 [1999]; People v Dien, 77 NY2d 885, 886 [1991]; People vRivera, 73 NY2d 941, 941-942 [1989]; People v Jones, 76 AD3d 716, 717 [2010]). In any event, thechallenged remarks were not so prejudicial as to constitute reversible error.
The defendant also contends that the trial court deprived him of a fair trial by precluding adefense witness from testifying. Contrary to the defendant's contention, the trial court providentlyexercised its discretion in precluding the witness from testifying in view of the collateral natureof the prospective testimony (see People v Aska, 91 NY2d 979, 981 [1998]; People v DeBerry, 17 AD3d 480,481 [2005]).
There is no merit to the defendant's contention that the trial court deprived him of a fair trialby denying his request for a jury charge that a prosecution witness's intoxication may beconsidered in evaluating the witness's credibility. The general credibility instruction given by thetrial court was sufficient (see generallyPeople v Gillyard, 70 AD3d 854, 855 [2010]; People v Butts, 139 AD2d 660[1988]).
The defendant's remaining contention is unpreserved for appellate review (see CPL470.05 [2]) and, in any event, without merit. Mastro, J.P., Lott, Austin and Cohen, JJ., concur.