| People v Quezada |
| 2014 NY Slip Op 02462 [116 AD3d 796] |
| April 9, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlos Quezada, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered April 25, 2012, convicting him of predatory sexual assault against achild, rape in the first degree, sexual abuse in the first degree, and endangering thewelfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that he was deprived of a fair trial bythe combination of the Supreme Court's original ruling pursuant to People vSandoval (34 NY2d 371 [1974]), and the elicitation of the underlying facts of a priorassault conviction by defense counsel during the defendant's testimony on directexamination, and by the prosecutor on cross-examination. Contrary to the defendant'scontention, the Supreme Court providently exercised its discretion in making its originalSandoval ruling by concluding that the People could cross-examine him as to theexistence and nature—but not the underlying facts—of a prior conviction ofcriminal possession of a weapon and an April 2006 assault conviction, and couldcross-examine him as to the existence and nature—and the underlyingfacts—of a February 2006 assault conviction. The court struck an appropriatebalance between the probative value of the defendant's prior crimes with respect to theissue of his credibility and the potential prejudice to the defendant (see People vSandoval, 34 NY2d at 377-378; People v Hicks, 84 AD3d 1402 [2011]; People v DiBella, 277 AD2d 699 [2000]).
The defendant failed to preserve for appellate review his contention that the trialcourt improperly modified its Sandoval ruling after his direct examination topermit the People to cross-examine him as to the underlying facts of the April 2006assault conviction (see People vLattimore, 63 AD3d 521 [2009]). In any event, the trial court properly modifiedits Sandoval ruling when the defendant opened the door to questioning about theunderlying facts of that conviction (see People v Fardan, 82 NY2d 638, 646[1993]). The defendant's testimony that he only struck another inmate with a chair inself-defense was misleading, as the facts underlying this prior conviction revealed thatthe [*2]defendant acted in concert with codefendants whoalso participated in the assault upon the inmate. Moreover, the Supreme Court gaveproper limiting instructions in this case, cautioning the jury that the evidence of priorconvictions could not provide a basis for evaluating the defendant's guilt of the crimescharged in the instant matter (see id. at 646-647). While defense counsel shouldnot have elicited, on direct examination of his client, the underlying facts of the April2006 assault conviction, the defendant has not demonstrated that this single error was "soegregious and prejudicial" as to constitute the ineffective assistance of counsel and todeprive him of a fair trial (People v Turner, 5 NY3d 476, 480 [2005] [internalquotation marks omitted]).
Similarly, the defendant's contention that the prosecutor engaged in misconductwhile cross-examining him is unpreserved for appellate review (see People v Williams, 8NY3d 854, 855 [2007]; People v Dinh, 70 AD3d 848, 849 [2010]; People vBooth, 265 AD2d 485, 486 [1999]). In any event, "[o]nce a defendant testifies andplaces his [or her] credibility in issue, a prosecutor need not tread lightly incross-examining" (People v Overlee, 236 AD2d 133, 136 [1997]). Theprosecutor's questioning about the underlying facts of the defendant's prior assaultconvictions was intended to reveal a willingness on the defendant's part to place hisself-interest ahead of that of society, proof that was relevant to suggest his readiness as awitness to do so again (cf. People v Sandoval, 34 NY2d at 377). Such evidenceis generally "both relevant and material to the credibility, veracity and honesty" of thewitness and is, therefore, a proper subject for cross-examination (People vColeman, 56 NY2d 269, 273 [1982]). While we agree with the defendant that one ofthe prosecutor's questions was improper, the Supreme Court sustained defense counsel'sobjection and, in any event, the improper question fell short of the sort of "egregious"misconduct that would have deprived the defendant of a fair trial (see id.).
The defendant's challenge to various remarks made by the prosecutor duringsummation is unpreserved for appellate review, as the defendant failed to object to any ofthe challenged summation remarks (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]). In any event, most of the challenged remarks were proper becausethey were within the broad bounds of rhetorical comment permissible in closingarguments, constituted a fair response to arguments made by defense counsel insummation, or constituted fair comment on the evidence (see People v Halm, 81NY2d 819, 821 [1993]; People v Galloway, 54 NY2d 396, 399 [1981];People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Hanson, 100 AD3d771, 772 [2012], lv granted 21 NY3d 1016 [2013]). To the extent that someof the comments were improper, they were harmless, since the evidence of thedefendant's guilt was overwhelming and there was no significant probability that theerrors might have contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; People v Hanson, 100 AD3d at772). Eng, P.J., Dillon, Maltese and Duffy, JJ., concur.