| People v Rivera |
| 2015 NY Slip Op 08302 [133 AD3d 1255] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNoel R. Rivera, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 15, 2010. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of assault in the first degree (Penal Law § 120.10 [1]).We agree with defendant that Supreme Court erred in precluding defense counsel fromquestioning a defense witness regarding the basis of her knowledge of a prosecutionwitness's reputation for truthfulness and honesty (see People v Hanley, 5 NY3d 108, 112-114 [2005]; People v Hopkins, 56 AD3d820, 821-822 [2008]; seealso People v Carter, 31 AD3d 1167, 1168 [2006]). " '[A] party has aright to call a witness to testify that a key opposing witness, who gave substantiveevidence and was not called for purposes of impeachment, has a bad reputation in thecommunity for truth and veracity' " (People v Fernandez, 17 NY3d 70, 76 [2011]; seeHanley, 5 NY3d at 112). We conclude, however, that the error is harmless. Theevidence of guilt is overwhelming, and there is no significant probability that the jurywould have acquitted defendant if they were allowed to hear testimony that theprosecution witness had a bad reputation for truthfulness (see Hopkins, 56 AD3dat 823-824; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975];cf. Hanley, 5 NY3d at 114-115).
Defendant's contention that the prosecutor's summation and the court's instruction tothe jury constructively amended the indictment and thereby improperly changed thetheory of the prosecution is not preserved for our review (see People v Cullen, 110 AD3d1474, 1475 [2013], affd 24 NY3d 1014 [2014]; People v Osborne, 63 AD3d1707, 1708 [2009], lv denied 13 NY3d 748 [2009]; People v Odom, 53 AD3d1084, 1086 [2008], lv denied 11 NY3d 792 [2008]). In any event, thatcontention is without merit. The indictment charged defendant with assaulting one of thevictims "by means of a deadly weapon, to wit: a shotgun." Defendant contends that hewas prejudiced both by the prosecutor's summation, which suggested that defendant shotthat victim first with a shotgun and then a revolver, after the shotgun jammed, and thecourt's charge, which instructed the jury that they were to determine whether defendantcommitted assault "by means of a deadly weapon." The indictment, however," 'charged more than the People were required to prove under the statute. . . , and the trial court's charge did not usurp the grand jury's powers orchange the theory of the prosecution' " (Odom, 53 AD3d at 1086; seePeople v Spann, 56 NY2d 469, 471-473 [1982]; see also People v Sage, 204AD2d 746, 747 [1994], lv denied 84 NY2d 832 [1994]). The People neverchanged their theory that the victim at issue was shot by defendant's use of a shotgun.Defendant's further contention that the trial evidence rendered the indictment duplicitousis not preserved for our review (see People v Allen, 24 NY3d 441, 449-450 [2014]), and wedecline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial by prosecutorial misconduct (see People v Benton, 106 AD3d 1451, 1451-1452 [2013],lv denied 21 NY3d 1040 [2013]; People v Wellsby, 30 AD3d 1092, 1093 [2006], lvdenied 7 NY3d 796 [2006]). In any event, his contention is without merit. Theprosecutor's remarks on summation were within "the broad bounds of rhetorical commentpermissible during summations" and did not shift the burden of proof (People v McEathron, 86 AD3d915, 916 [2011], lv denied 19 NY3d 975 [2012] [internal quotation marksomitted]). The prosecutor's remarks regarding defendant's possession of the revolver wasa fair response to defense counsel's summation and fair comment on the evidence (see People v Walker, 117AD3d 1441, 1441-1442 [2014], lv denied 23 NY3d 1044 [2014]). Theprosecutor did not engage in misconduct in questioning certain police officers and, to theextent the prosecutor engaged in misconduct during her cross-examination of a defensewitness, that misconduct was not so egregious as to deprive defendant of a fair trial(see Wellsby, 30 AD3d at 1093). Finally, we reject defendant's contention that hewas denied effective assistance of counsel (see generally People v Baldi, 54NY2d 137, 147 [1981]). Present—Scudder, P.J., Smith, Centra, Whalen andDeJoseph, JJ.