| People v Taylor |
| 2015 NY Slip Op 08862 [134 AD3d 739] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Winfred L. Taylor, Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Weber, J.), rendered February 23, 2012, convicting him of robbery in the second degreeand assault in the third degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of robbery in the second degree and assault in the third degree is unpreservedfor appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20[1995]; People v Williams, 187 AD2d 547 [1992]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant'sguilt of those crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the branch of his omnibus motion which was tosuppress identification testimony should have been granted because the identificationwas the result of an impermissibly suggestive showup procedure. However, thecomplainant's identification of the defendant near the scene of the crime wasspontaneous, and not the result of a police-arranged confrontation, even though thecomplainant was being driven home from the hospital by the police at the time (see People v Tlatelpa, 107AD3d 1022 [2013]).
The defendant's arguments regarding alleged prosecutorial misconduct duringsummation are largely unpreserved for appellate review (see CPL 470.05 [2]; People v Garner, 27 AD3d764 [2006]). In any event, the challenged remarks were either fair comment on theevidence, permissive rhetorical comment, or responsive to defense counsel's summation(see People v Galloway, 54 NY2d 396 [1981]; People v Garner, 27 AD3dat 764; People v Rhodes, 11AD3d 487 [2004]).
There is no merit to the defendant's contention that he was deprived of the effective[*2]assistance of counsel based solely on defensecounsel's failure to object to the alleged prosecutorial misconduct (see People v Parker-Davidson,89 AD3d 1114 [2011]; People v Dunn, 54 AD3d 871 [2008]).
The County Court properly declined to charge the jury on the defense of justification,because there was no reasonable view of the evidence supporting a justification charge(see People v Baranov, 121AD3d 706, 707 [2014]; People v Pine, 82 AD3d 1498 [2011]; People vVictor, 176 AD2d 769 [1991]; People v White, 168 AD2d 962 [1990]).
The defendant's contention that the County Court violated his rights under theConfrontation Clause of the Sixth Amendment to the United States Constitution is notpreserved for appellate review (see People v Walker, 70 AD3d 870 [2010]). In any event,the contention is without merit. While the Confrontation Clause guarantees anopportunity for effective cross-examination, it does not guarantee a cross-examination"that is effective in whatever way, and to whatever extent, the defense might wish"(Delaware v Fensterer, 474 US 15, 20 [1985]; see People v Burns, 6 NY3d793 [2006]; People vGoodson, 35 AD3d 760, 761 [2006]). It is within the discretion of the trial courtto limit the scope of cross-examination when questions are irrelevant, concern collateralissues, or risk misleading the jury (see Delaware v Van Arsdall, 475 US 673,678-679 [1986]; People vFrancisco, 44 AD3d 870 [2007]; People v Legere, 81 AD3d 746, 750 [2011]; People v Gaviria, 67 AD3d701 [2009]). Here, the court's limitation of the defense cross-examination was aprovident exercise of its discretion.
The defendant's remaining contentions, including those raised in his pro sesupplemental brief which were not stricken on motion, are without merit. Dillon, J.P.,Sgroi, Cohen and LaSalle, JJ.,concur.
Motion by the respondent to strike the appellant's pro se supplemental brief on anappeal from a judgment of the County Court, Suffolk County, rendered February 23,2012, on the ground that it refers to matter dehors the record. By decision and order onmotion of this Court dated June 25, 2015, the motion was held in abeyance and referredto the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is
Ordered that the motion is granted to the extent that the "Statement of Facts" onpages 7-10, and paragraphs 10-14 on pages 13-15 and paragraphs 39-40 on page 27, arestricken from the appellant's pro se supplemental brief and have not been considered onthe appeal; and it is further,
Ordered that the motion is otherwise denied. Dillon, J.P., Sgroi, Cohen and LaSalle,JJ., concur.