| People v Rivera |
| 2013 NY Slip Op 02868 [105 AD3d 1343] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vSteven Rivera, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered June 26, 2008. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, criminal possession of a weapon in the second degree andcriminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]), criminalpossession of a weapon in the second degree (§ 265.03 [3]), and criminalpossession of a weapon in the third degree (§ 265.02 [1]). Defendant failed topreserve for our review his contention that he was deprived of his constitutional right ofconfrontation by County Court's limitation of his cross-examination of a prosecutionwitness with respect to the witness's mental health (see People v Bryant, 93 AD3d 1344, 1344-1345 [2012]; People v Bernardez, 63 AD3d1174, 1175 [2009], lv denied 13 NY3d 794 [2009]; see generally Peoplev Angelo, 88 NY2d 217, 222 [1996]). In any event, that contention, as well asdefendant's further contention that the court abused its discretion in precluding furthercross-examination about the witness's mental health, is without merit. "It is well settledthat '[a]n accused's right to cross-examine witnesses . . . is not absolute'. . . [and that] [t]he trial court has discretion to determine the scope of thecross-examination of a witness" (People v Corby, 6 NY3d 231, 234 [2005], quotingPeople v Williams, 81 NY2d 303, 313 [1993]; see People v Lester, 83 AD3d1578, 1578 [2011], lv denied 17 NY3d 818 [2011]; People v Francisco, 44 AD3d870, 870 [2007], lv denied 9 NY3d 1033 [2008]). Thus, trial courts "retainwide latitude . . . to impose reasonable limits on . . .cross-examination based on concerns about, among other things, harassment, prejudice,confusion of the issues, the witness' safety, or interrogation that is repetitive or onlymarginally relevant" (Delaware v Van Arsdall, 475 US 673, 679 [1986]; seeFrancisco, 44 AD3d at 870). A defendant may question a witness about his or hermental health or psychiatric history upon a showing that the witness's "capacity toperceive and recall events was impaired by a psychiatric condition" (People v Gaffney, 30 AD3d1096, 1096 [2006], lv denied 7 NY3d 789 [2006]; see People vBaranek, 287 AD2d 74, 78 [2001]) or that "such evidence would bear upon [thewitness's] credibility or otherwise be relevant" (People v Middlebrooks, 300AD2d 1142, 1143 [2002], lv denied 99 NY2d 630 [2003] [internal quotationmarks omitted]; see People v Byers, 254 AD2d 494, 494 [1998], lvdenied 93 NY2d 1043 [1999]; [*2]People vKnowell, 94 AD2d 255, 260-261 [1983]). Here, we conclude that defendant failed tomake the requisite showing that the witness in fact had a history of mental illness or thatsuch evidence would bear upon her capacity to perceive or recall the events at issue(see Middlebrooks, 300 AD2d at 1143; Byers, 254 AD2d at 494;Knowell, 94 AD2d at 261). Defense counsel's statement that the witness was"suffering from or being treated for some variety of mental health issue" was speculativeinasmuch as it was based upon the assertions that "everyone" was aware that the witnesswas taking unspecified "mental health medications" and that the witness reportedly hadvisited a mobile "mental health unit" some three months after the events at issue. Thus,that statement was insufficient to warrant further cross-examination regarding thewitness's mental condition (seePeople v Brown, 24 AD3d 884, 887 [2005], lv denied 6 NY3d 832[2006]; cf. Baranek, 287 AD2d at 78-79; People v Knowell, 127 AD2d794, 794 [1987]).
We reject the further contention of defendant that the People committed aBrady violation by failing to disclose the identity of two witnesses in a timelymanner. "To establish a Brady violation, a defendant must show that (1) theevidence is favorable to the defendant because it is either exculpatory or impeaching innature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arosebecause the suppressed evidence was material" (People v Fuentes, 12 NY3d 259, 263 [2009], reargdenied 13 NY3d 766 [2009]). We conclude that the evidence at issue is notexculpatory in nature and thus does not constitute Brady material (seegenerally People v King, 79 AD2d 992, 993 [1981]). Defendant sought the identityof and contact information for two witnesses named in a police report. According to thepolice report, the relevant witnesses said that they observed a group of five or sixHispanic males shooting at the victim. They described one of the suspects as "young" andanother of the suspects as a thin Hispanic male with a "poof hairstyle pulled back." Evenassuming, arguendo, that those descriptions are inconsistent with defendant's physicalappearance, we note that the witnesses were unable to describe the remaining membersof the group, and the witnesses' descriptions therefore did not exclude defendant as aperpetrator (see People v Chin, 67 NY2d 22, 33 [1986]; People v Alvarez, 44 AD3d562, 563-564 [2007], lv denied 9 NY3d 1030 [2008]; People v LaBombard, 99 AD2d 851, 852-853 [1984]; cf. People v Daly, 57 AD3d 914, 915-917 [2008],affd 14 NY3d 848 [2010]). Moreover, we conclude that defendant was afforded"a meaningful opportunity to use the allegedly exculpatory material to cross-examine thePeople's witnesses or as evidence during his case" (People v Cortijo, 70 NY2d868, 870 [1987]), but he failed to do so (see People v Chandler, 279 AD2d 262,262 [2001], lv denied 96 NY2d 781 [2001]; see generally People v Nielsen, 67 AD3d 1440, 1440-1441[2009]).
Contrary to defendant's further contention, we conclude that the court did not abuseits discretion in removing him from the courtroom during the prosecutor's summation.Although a criminal defendant has a constitutional right to be present at his or her trial, adefendant may forfeit that right by engaging in disruptive behavior (see People v Parker, 92 AD3d807, 807 [2012], lv denied 19 NY3d 966 [2012]; People v Sanchez, 7 AD3d645, 646 [2004], lv denied 3 NY3d 681 [2004]; People v Jackson,262 AD2d 1031, 1032 [1999], lv denied 94 NY2d 881 [2000]). Thus, adefendant "may be removed from the courtroom if, after being warned by the trial court,the disruptive conduct continues" (People v Joyner, 303 AD2d 421, 421 [2003],lv denied 100 NY2d 563 [2003]; see CPL 260.20), and that is the casehere (see Parker, 92 AD3d at 807; Jackson, 262 AD2d at 1032; see also People v Mercer, 66AD3d 1368, 1369 [2009], lv denied 13 NY3d 940 [2010]).
Finally, we reject defendant's contention that he was entitled to an adverse inferencecharge on the ground that the police failed to record his interrogation (see People v McMillon, 77AD3d 1375 [2010], lv denied 16 NY3d 897 [2011]; People v Holloway, 71 AD3d1486, 1487 [2010], lv denied 15 NY3d 774 [2010]; People v Hammons, 68 AD3d1800, 1801 [2009], lv denied 14 NY3d 801 [2010]). Present—Smith,J.P., Peradotto, Carni, Valentino and Martoche, JJ.