| People v Greene |
| 2013 NY Slip Op 06589 [110 AD3d 827] |
| October 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Demetrious Greene, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered September 2, 2009, convicting him of murder in the second degree,attempted robbery in the first degree (two counts), criminal possession of a weapon in thesecond degree, and criminal possession of a weapon in the third degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance ofcounsel is without merit. Here, defense counsel made appropriate pretrial motionsresulting in the trial court conducting Wade, Huntley, Mapp, andDunaway hearings (see United States v Wade, 388 US 218 [1967];People v Huntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643[1961]; Dunaway v New York, 442 US 200 [1979]), participated actively duringvoir dire, made a coherent and well-reasoned opening statement, vigorouslycross-examined the People's witnesses, consistently made objections, made applicationsfor mistrials, made trial motions to dismiss at the close of the People's case, and, at theend of the trial, presented a defense case of misidentification and a cogent closingstatement (see People vJenkins, 103 AD3d 753 [2013]). Moreover, with defense counsel's assistance,the defendant was acquitted of intentional murder in the second degree and attemptedmurder in the second degree. Viewing the record in its entirety, the defendant receivedmeaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Rivera, 71 NY2d 705 [1988]).
Contrary to the People's contention, the defendant's claim that he was deprived of hisconstitutional right to confront witnesses by the trial court's ruling that he could notcross-examine the eyewitness about the eyewitness's alleged omission of the assailant's"squinting," "partly closed" left eye in his description of the assailant to the police ispreserved for appellate review (see CPL 470.05 [2]).
"[A] witness may not be impeached simply by showing that he [or she] omitted tostate a fact, or to state it more fully at a prior time" (People v Bornholdt, 33NY2d 75, 88 [1973]). However, impeachment by omission is permissible when thewitness omits a critical fact (see People v Savage, 50 NY2d 673, 679 [1980])."An omission of fact at a prior time is insufficient for impeachment purposes unless it isshown that 'at th[at] prior time the witness' attention was called to the matter and that he[or she] was specifically asked about the facts embraced in the question propounded attrial' " (People v Keys, 18AD3d 780, 781 [2005], quoting People v Bornholdt, 33 NY2d at 88). "'[C]urtailment [of cross-examination] will be judged improper when it keeps from thejury relevant and important [*2]facts bearing on thetrustworthiness of crucial testimony' " (People v Castellanos, 65 AD3d 555, 557 [2009], quotingPeople v Ashner, 190 AD2d 238, 247 [1993]). Here, given the eyewitness'stestimony which demonstrated that the defendant's "squinting," "partly closed" left eyewas a significant factor in his identifying the defendant as the assailant, the trial courterred in precluding the defendant from cross-examining the eyewitness about hisomission of this observation of the assailant's appearance when he described the assailantto the police (see People v Spinelli, 214 AD2d 135, 140 [1995], citingJenkins v Anderson, 447 US 231, 239 [1980]; see also People v Dizak, 93AD3d 1182 [2012]; cf. People v Byrd, 284 AD2d 201 [2001]; People vBishop, 206 AD2d 884 [1994]).
However, the error in precluding the defendant from cross-examining the eyewitnessabout this omission was harmless, as there was overwhelming evidence of thedefendant's guilt, and no reasonable possibility that the error might have contributed tohis conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).
The defendant's contention that his constitutional rights to due process and to presenta defense were violated when the trial court precluded him from calling two witnesseswho would purportedly testify in support of his defense is unpreserved for appellatereview (see CPL 470.05 [2]; People v Lane, 7 NY3d 888 [2006]). In any event, thiscontention is without merit. The trial court has broad discretion in determining themateriality and relevance of proffered evidence (see generally Caplan v Tofel, 58 AD3d 659 [2009]). Here,the defendant failed to make a sufficient offer of proof that the proposed testimony wasrelevant, offered in good faith, and not cumulative of other testimony. Therefore, the trialcourt properly precluded the defendant from calling those witnesses to testify, and thisruling did not deprive the defendant of his constitutional rights to due process and topresent a defense.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Dillon, J.P., Chambers, Austin and Roman, JJ., concur.