| People v Kennedy |
| 2012 NY Slip Op 08767 [101 AD3d 1045] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LeeKennedy, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andGeorge R. Painter IV of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered May 4, 2010, convicting him of criminal possession of a weapon in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court erred in modifying its Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) to permit the prosecutor to question the defendant regardinghis gang membership, which the Supreme Court had previously ruled was to be precluded.Contrary to the People's contention, photographs depicting the defendant wearing gang attire,which were discovered during trial, did not provide new information relevant to the defendant'scredibility (cf. People v Cooper, 78AD3d 593 [2010]; People v Ramos, 255 AD2d 203 [1998]). However, under thecircumstances of this case, the error in permitting the questioning was harmless (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Duggins, 1 AD3d 450, 450-451 [2003], affd 3NY3d 522 [2004]). In contrast, the Supreme Court, as part of its Sandoval ruling,providently exercised its discretion in permitting the prosecutor to cross-examine a potentialdefense witness regarding his knowledge of the defendant's gang membership because thisevidence tended to establish a motive for this witness to fabricate (see People v Ocampo, 28 AD3d684 [2006]).
The defendant's challenges to various remarks made by the prosecutor during his summationare unpreserved for appellate review (see CPL 470.05 [2]), except for his challenge to theprosecutor's description of defense counsel's characterization of a police witness. In any event, allof the challenged remarks were within the bounds of permissible rhetorical comment, fairresponse to arguments and issues raised by the defense, or fair comment on the evidence (seePeople v Ashwal, 39 NY2d 105, 109-110 [1976]). Florio, J.P., Leventhal, Austin and Cohen,JJ., concur.