| People v Caballero |
| 2016 NY Slip Op 01688 [137 AD3d 929] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Caballero, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (Robert J. Masters and JillGross-Marks of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Schwartz, J.), rendered September 10, 2014, convicting him of murder in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that his conviction was not supported by legally sufficientevidence is largely unpreserved for appellate review (see People v Gray, 86NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the Supreme 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, 871 [2010]). In anyevent, 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, 795 [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, 679[1986]; People v Legere, 81AD3d 746, 750 [2011]; People v Gaviria, 67 AD3d 701 [2009]; People v Francisco, 44 AD3d870 [2007]). Here, the court's limitation of the defense cross-examination was aprovident exercise of its discretion.
The prosecution is required to turn over to the defense counsel all statements of aprosecution witness relating to the subject matter of the witness's testimony (seeCPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286 [1961]). Here, therepresentation by the prosecutor, that no prior statements of the subject witness requestedby defense counsel existed, satisfied the prosecutor's burden, since the defendant couldnot articulate a factual basis for his claim that the prosecutor improperly denied [*2]the existence of such statements (see People vPoole, 48 NY2d 144, 149 [1979]; People v Rodriguez, 270 AD2d 505[2000]; People v Perez, 209 AD2d 643, 644 [1994]). Therefore, a Rosariohearing was not warranted.
Contrary to the defendant's contention, the Supreme Court properly admitted intoevidence a statement of a certain witness as an excited utterance. The circumstancessurrounding the statement warrant the conclusion that the statement was not made "underthe impetus of studied reflection" (People v Edwards, 47 NY2d 493, 497 [1979]),and permit a reasonable inference that the declarant had an opportunity to observe thealtercation that led to the victim's death (see People v Fratello, 92 NY2d 565, 571[1998]; People v Young, 308 AD2d 555, 556 [2003]).
The defendant's remaining contentions are without merit. Leventhal, J.P., Dickerson,Duffy and LaSalle, JJ., concur.