| People v Bell |
| 2016 NY Slip Op 00989 [136 AD3d 838] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Amar Bell, Appellant. |
Marianne Karas, Thornwood, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Jennifer Spencer andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered February 25, 2014, convicting him of assault in the first degreeand criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
On April 12, 2011, at approximately 11:15 a.m., the defendant entered a cell phoneand game store located in Yonkers and, following a dispute with a store employee over arecent cell phone purchase by the defendant's girlfriend, slashed the employee across theleft side of his face with a knife. The incident was captured on the store's surveillancevideo. At trial, the defendant asserted the affirmative defense that he was not responsibleby reason of mental disease or defect (see Penal Law § 40.15).
Contrary to the defendant's contention, under the circumstances presented, the trialcourt providently exercised its discretion and did not deprive him of the right to present adefense by denying his request to recall his own witness for further examination (see People v Flowers, 102AD3d 885 [2013]). The proffered testimony was collateral and cumulative in nature(see People v Johnson, 158 AD2d 621 [1990]; People v Mercado, 134AD2d 292 [1987]).
The trial court providently exercised its discretion in precluding a portion of thedefendant's psychiatric evidence because of his failure to provide timely and adequatenotice of his intent to do so (see CPL 250.10 [1] [a], [c]; [2]; People vAlmonor, 93 NY2d 571 [1999]; People v White, 75 AD3d 109 [2010]). Further, the trialcourt properly refused to charge assault in the third degree, or reckless assault (PenalLaw § 120.00 [2]), as a lesser-included offense of assault in the first degree(Penal Law § 120.10 [2]), since no reasonable view of the evidence wouldsupport a finding that the defendant consciously disregarded a known risk of physicalinjury (see Penal Law § 15.05 [3]), rather than possessed aconscious objective to disfigure the complainant seriously and permanently (seePeople v Glover, 57 NY2d 61 [1982]; People v Beckford, 49 AD3d 547 [2008]; People vFunchess, 284 AD2d 478 [2001]; People v House, 278 AD2d 244 [2000];People v Thompson, 245 AD2d 321 [1997]).
Contrary to the defendant's contention, the store owner's testimony on direct [*2]examination that he and the defendant got into a verbalargument over the defendant's cell phone account two months prior to the incident didnot constitute evidence of uncharged crimes or prior bad acts (see People v Slaughter, 23AD3d 502 [2005]; People v Jones, 293 AD2d 489 [2002]). Even if it didconstitute a bad act, the testimony served to complete the narrative of the events leadingto the defendant's arrest (see People v Alvino, 71 NY2d 233, 241 [1987];People v Ortiz, 239 AD2d 441 [1997]), as the witness further testified that,following the incident, he retrieved the defendant's name and address from a store receiptand gave it to the police. Moreover, the trial court's limiting instruction to the jury servedto alleviate any prejudice resulting from the admission of the evidence (see People v Holden, 82 AD3d1007 [2011]).
The defendant's contention that he was deprived of a fair trial by the prosecutor'smisconduct during her opening statement, on the People's case-in-chief, oncross-examination, and on summation, is for the most part unpreserved for appellatereview since defense counsel did not object to these remarks or questions (seeCPL 470.05 [2]; People vDavis, 132 AD3d 891 [2015]), and failed to request curative instructions ormove for a mistrial on the grounds now argued on appeal (see People v Daley, 50 AD3d1051 [2008]). In any event, the defendant was not deprived of a fair trial by any ofthe alleged prosecutorial misconduct. To the extent any comments now challenged by thedefendant were improper, any error was harmless, as there was overwhelming evidenceof the defendant's guilt, and no significant probability that any error contributed to thedefendant's conviction (seePeople v Flanagan, 132 AD3d 693 [2015]).
Finally, the defendant's contention that the trial court displayed actual bias in favor ofthe People in its rulings and in certain comments directed at defense counsel isunpreserved for appellate review because the defendant failed to make a recusal motion(see CPL 470.05 [2]; People v Prado, 4 NY3d 725 [2004]; People v Persaud, 98 AD3d527 [2012]). In any event, the record does not support the defendant's contention (see People v Bodie, 131 AD3d481 [2015]; People v YiQiu, 129 AD3d 1111 [2015]). Mastro, J.P., Hall, Maltese and LaSalle, JJ.,concur.