| People v King |
| 2013 NY Slip Op 07365 [111 AD3d 1345] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesKing, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedMay 22, 2009. The judgment convicted defendant, after a nonjury trial, of criminal saleof a controlled substance in or near school grounds, criminal sale of a controlledsubstance in the third degree and criminal possession of a controlled substance in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of criminal sale of a controlled substance in or near school grounds (Penal Law§ 220.44 [2]), criminal sale of a controlled substance in the third degree (§220.39 [1]), and criminal possession of a controlled substance in the third degree(§ 220.16 [1]). Defendant failed to preserve for our review his contention thatreversal is required based on prosecutorial misconduct on summation (see People v Green, 43 AD3d1279, 1281 [2007], lv denied 9 NY3d 1034 [2008]) and, in any event, thatcontention is without merit. We agree with defendant that it was improper for theprosecutor to remark that a witness was afraid of defendant inasmuch as that was not afair comment on the evidence (see People v Facciolo, 288 AD2d 392, 394[2001]; cf. People vBahamonte, 89 AD3d 512, 512-513 [2011], lv denied 18 NY3d 881[2012]). We further agree with defendant that the prosecutor improperly used defendantspast crimes of violence to suggest that the witness had "a reason to be afraid." It isfundamental that the function of cross-examining a defendant about his or her priorcriminal, vicious, or immoral acts "is solely to impeach [the defendant's] credibility as awitness" (People v Sandoval, 34 NY2d 371, 376 [1974]). Nevertheless, weconclude that the prosecutor's isolated remarks were not so egregious as to deprivedefendant of a fair trial (seePeople v Miller, 104 AD3d 1223, 1223-1224 [2013], lv denied 21NY3d 1017 [2013]; People vScott, 60 AD3d 1483, 1484 [2009], lv denied 12 NY3d 859 [2009]),particularly considering that this was a bench trial (see People v Dixon, 50 AD3d 1519, 1519-1520 [2008],lv denied 10 NY3d 958 [2008]; see generally People v Moreno, 70NY2d 403, 406 [1987]). Present—Centra, J.P., Fahey, Carni, Sconiers andValentino, JJ.