| People v Bounds |
| 2012 NY Slip Op 07811 [100 AD3d 1523] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NormanBounds, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered June25, 2008. The judgment convicted defendant, upon a jury verdict, of intimidating a victim orwitness in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofintimidating a victim or witness in the third degree (Penal Law § 215.15), defendantcontends that he was deprived of a fair trial by prosecutorial misconduct. Specifically, defendantcontends that the prosecutor engaged in misconduct by arranging for the arrest of a woman whowas in the courthouse waiting to testify on defendant's behalf, thereby interfering with his right topresent a defense. We reject that contention. It is well settled that "[d]ue process may be violatedwhen the prosecution's conduct deprives a defendant of exculpatory testimony . . . [,but the prosecution's] conduct is not a deprivation of a defendant's right to call witnesses wherethe proposed evidence is not shown to be exculpatory" (People v Dixon, 93 AD3d 894, 895 [2012] [internal quotationmarks omitted]). Here, because defense counsel decided not to call the woman as a witness, ithas not been established that her testimony, if given, would have been exculpatory. Moreover,inasmuch as the arrest of the potential witness was clearly lawful—indeed, defendant doesnot dispute that fact and instead challenges the timing of the arrest—we perceive no basisto conclude that the prosecutor acted improperly by having the witness arrested before she wasable to testify. Although defendant had a right to call the woman as a witness, the police were notobligated to wait until after she testified to place her under arrest.
Defendant's further contention that he was deprived of a fair trial by an improper commentmade by the prosecutor during his summation is unpreserved for our review (see CPL470.05 [2]) and, in any event, that contention lacks merit. Finally, although we agree withdefendant that County Court erred in admitting in evidence a stun gun found in the vehicle thatdefendant was driving a day after the charged crimes were committed, we conclude that theMolineux error is harmless (seePeople v Taylor, 97 AD3d 1139, 1141 [2012], lv denied 19 NY3d 1029 [2012];People v Baker, 21 AD3d 1435,1436 [2005], lv denied 6 NY3d 773 [2006]). The proof of guilt is overwhelming, andthere is no significant probability that defendant would have been acquitted if [*2]the stun gun had not been admitted in evidence (see generallyPeople v Kello, 96 NY2d 740, 744 [2001]; People v Crimmins, 36 NY2d 230,241-242 [1975]). Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.