| People v Rivera |
| 2015 NY Slip Op 06026 [130 AD3d 487] |
| July 9, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Christian Rivera, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (NicholasSchumann-Ortega of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel),for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April25, 2013, convicting defendant, after a jury trial, of attempted assault in the first degreeand two counts of criminal possession of a weapon in the second degree, and sentencinghim to concurrent terms of nine years, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. Defendant's confession to the police was sufficiently corroborated byother proof establishing that the crime was committed (see CPL 60.50).
The court properly exercised its discretion in excluding, as irrelevant, a videotape ofdefendant's conversation with an assistant district attorney during which defendantasserted the right to counsel, and the court's ruling did not deprive defendant of his rightto present a defense (see Crane v Kentucky, 476 US 683, 689-690 [1986]). Theconversation took place approximately 12 hours after defendant waived hisMiranda rights and made an incriminating statement to a detective. The laterinvocation of the right to counsel, which was not followed by any further statement, hadno relevance to the voluntariness of the statement defendant made many hours earlier.The record also fails to support defendant's assertion that the precluded evidence tendedto impeach the detective's testimony. To the extent defendant is also making a claimabout the scope of cross-examination at the suppression hearing, we find it withoutmerit.
The court properly exercised its discretion in permitting the prosecutor to addressleading questions to a witness whom the court declared to be hostile. Defendant did notpreserve his specific claim that the prosecutor violated CPL 60.35, and we decline toreview it in the interest of justice. As an alternative holding, we reject it on the merits.Defendant's argument conflates the examination of a hostile witness by leadingquestions, which is a matter of discretion, with the impeachment of a party's own witnessby prior contradictory statements, which is regulated by CPL 60.35 (see People vMarshall, 220 AD2d 692 [2d Dept 1995], lv denied 87 NY2d 904 [1995]).Here, the prosecutor did not attempt to impeach the hostile witness with any priorstatement by her, and the prosecutor's use of a statement by another prosecution witnessto [*2]refresh the hostile witness's recollection followedthe proper procedures for such refreshment. Finally if there was error n permitting theprosecutor's examination of the witness, it was harmless. Concur—Gonzalez, P.J.,Friedman, Renwick, Moskowitz and Clark, JJ.