| People v Colvin |
| 2013 NY Slip Op 08736 [112 AD3d 1348] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AllenColvin, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered April 3, 2009. The judgment convicted defendant, upon a juryverdict, of robbery in the first degree, robbery in the second degree and criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of,inter alia, robbery in the first degree (Penal Law § 160.15 [4]), defendant contendsthat Supreme Court erred in refusing to allow him to present evidence that a codefendantwrote a letter admitting that he committed the crimes charged in the indictment. Wereject that contention. It is well settled that, "before statements of a nontestifying thirdparty are admissible as a declaration against penal interest, the proponent must satisfy thecourt that four prerequisites are met[, including that] . . . the declarant mustbe aware at the time of its making that the statement was contrary to his penal interest"(People v Brensic, 70 NY2d 9, 15 [1987], mot to amend remittitur granted70 NY2d 722 [1987]; seePeople v Shabazz, 22 NY3d 896, 898 [2013]). Here, defendant failed toestablish that the author of the letter wrote it before pleading guilty, and defendant thusfailed to establish that the admission contained in the letter was against the author's penalinterest when he wrote it (seegenerally People v Ortiz, 81 AD3d 513, 514 [2011], lv denied 16 NY3d898 [2011]).
With respect to his contentions regarding the Huntley hearing, we note thatdefendant failed to preserve for our review his contention that the court "unduly limitedhis cross-examination of a police officer concerning . . . statements" thatdefendant made to that officer (People v Rookey, 292 AD2d 783, 783 [2002],lv denied 98 NY2d 701 [2002]). In any event, that contention is without merit."It is well settled that '[a]n accused's right to cross-examine witnesses . . . isnot absolute' . . . [and that t]he trial court has discretion to determine thescope of the cross-examination of a witness" (People v Corby, 6 NY3d 231, 234 [2005], quotingPeople v Williams, 81 NY2d 303, 313 [1993]). Here, we conclude that the courtdid not abuse its discretion in limiting the scope of defendant's cross-examination of theofficer at issue (see People v Baker, 294 AD2d 888, 889 [2002], lv denied98 NY2d 708 [2002]; People v Herner, 212 AD2d 1042, 1045 [1995], lvdenied 85 NY2d 974 [1995]). Present—Scudder, P.J., Smith, Peradotto,Lindley and Sconiers, JJ.