| People v Hines |
| 2013 NY Slip Op 00356 [102 AD3d 889] |
| January 23, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Arthur Hines, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, RichardLongworth Hecht, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J.), rendered June 11, 2010, as amended by a judgment of the same court(Zambelli, J.), rendered October 5, 2010, convicting him of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree(two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment, as amended, is affirmed.
Contrary to the People's contention, the defendant's claim that the evidence waslegally insufficient to establish his guilt is preserved for appellate review (see People v Soto, 8 AD3d683 [2004]; cf. People v Gray, 86 NY2d 10 [1995]). Viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, upon the exercise of our factual review power (seeCPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
The Supreme Court providently exercised its discretion in precluding the defendantfrom submitting evidence with respect to a prior unrelated lawsuit against the policedepartment and from cross-examining the arresting officers on the subject, since thedefendant failed to establish that the arresting officers had any knowledge of the civillawsuit at the time of the defendant's arrest, or any connection with the officers involvedin that lawsuit. Although proof aimed at establishing a motive to fabricate is nevercollateral and may not be excluded on that ground, a trial court may, as here, in theexercise of its discretion, properly exclude such proof where it is too remote andspeculative (see People v Thomas, 46 NY2d 100 [1978]; People vHoover, 298 AD2d 599 [2002]; People v Barney, 277 AD2d 460 [2000];People v Ayers, 161 AD2d 770 [1990]).
The defendant's contentions that various questions posed by the prosecutor duringcross-examination and certain allegedly improper comments made by the prosecutorduring her summation deprived him of his right to a fair trial are largely unpreserved forappellate review (see CPL 470.05 [2]; People v Osorio, 49 AD3d 562, 563-564 [2008]). In anyevent, for the most part, the [*2]challenged questionswere proper, and the challenged comments were proper, fair comment on the evidence,permissible rhetorical comment, or responsive to the summation of defense counsel (see People v Dorgan, 42 AD3d505 [2007]; People v McHarris, 297 AD2d 824 [2002]; People vClark, 222 AD2d 446 [1995]; People v Vaughn, 209 AD2d 459 [1994]). Tothe extent that some of the questions and comments were improper, they weresufficiently addressed by the Supreme Court's instructions to the jury (see People vEvans, 291 AD2d 569 [2002]; People v Brown, 272 AD2d 338 [2000]), ornot unduly prejudicial (seePeople v Malave, 7 AD3d 542 [2004]; People v Tolliver, 267 AD2d1007 [1999]).
The remaining contentions raised in the defendant's main brief are without merit. Theremaining contentions raised in the defendant's pro se supplemental brief either arewithout merit, or are based on matter dehors the record and are thus not reviewable ondirect appeal. Rivera, J.P., Chambers, Roman and Cohen, JJ., concur.
Motion by the respondent on an appeal from a judgment of the Supreme Court,Westchester County, rendered June 11, 2010, as amended by a judgment of the samecourt rendered October 5, 2010, inter alia, to strike the appellant's pro se supplementalbrief on the ground that it refers to matter dehors the record. By decision and order onmotion of this Court dated June 26, 2012, that branch of the motion which was to strikethe appellant's pro se supplemental brief was held in abeyance, and was referred to theJustices hearing the appeal for determination upon the argument or submission of theappeal.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is,
Ordered that the branch of the motion which is to strike the appellant's pro sesupplemental brief is denied as academic in light of the determination of the appeal.Rivera, J.P., Chambers, Roman and Cohen, JJ., concur.