| People v Alcarez |
| 2016 NY Slip Op 05590 [141 AD3d 943] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Miguel Alcarez, Appellant. |
Robert W. Linville, Public Defender, Hudson (Michael C. Howard of counsel), forappellant.
Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Columbia County(Koweek, J.), rendered January 15, 2014, upon a verdict convicting defendant of thecrimes of burglary in the first degree and robbery in the first degree.
In August 2012, police were summoned to a robbery in progress at the residence ofDesiree Graziano. Defendant and four others, wearing bandanas across their faces andpurportedly wielding a knife and a chisel, entered the residence—where Grazianoand three others were present—demanding to know the location of the drugs andmoney secreted therein. When police arrived, the perpetrators fled in a vehicle, which leftthe road and ended up in a pond. Defendant was arrested by police as he emerged wetfrom the pond. He was charged with—and ultimately convicted by a juryof—burglary in the first degree and robbery in the first degree. He was sentencedto concurrent prison terms of 12 years, together with postrelease supervision, and nowappeals.
Defendant argues that County Court unduly restricted his right to cross-examinewitnesses regarding drug-related activities by Graziano. A criminal defendant is entitledto conduct "appropriate cross-examination designed to show a prototypical form of biason the part of the witness" (Delaware v Van Arsdall, 475 US 673, 680 [1986];see People v Hudy, 73 NY2d 40, 56-57 [1988]; People v Alnutt, 101 AD3d1461, 1465 [2012], lv denied 21 NY3d 941 [2013], cert denied 571US &mdash, 134 S Ct 1035 [2014]). Since, at the time of trial, Graziano still facedpotential drug charges flowing from evidence found by police at the crime scene, she hada [*2]motive to attempt to tailor her testimony in amanner to curry favor with the prosecution (see Alford v United States, 282 US687, 693 [1931]; People vMcLeod, 122 AD3d 16, 19-20 [2014]). However, "the Confrontation Clauseguarantees an opportunity for effective cross-examination, not cross-examinationthat is effective in whatever way, and to whatever extent, the defense might wish"(Delaware v Fensterer, 474 US 15, 20 [1985]; accord People v Smith,— NY3d &mdash, &mdash, 2016 NY Slip Op 05061, *2 [2016]; see People v Wilson, 100AD3d 1045, 1047 [2012], lv denied 22 NY3d 998 [2013]). The trial courtretains discretion "to restrict cross-examination 'based on concerns about, among otherthings, harassment, prejudice, confusion of the issues, the witness' safety, or interrogationthat is repetitive or only marginally relevant' " (Corby v Artus, 699 F3d159, 166 [2d Cir 2012], cert denied 568 US &mdash, 133 S Ct 1287 [2013],quoting Delaware v Van Arsdall, 475 US at 679; see People v McLeod,122 AD3d at 19; People vDeFreitas, 116 AD3d 1078, 1081-1082 [2014], lv denied 24 NY3d 960[2014]; People v Mestres,41 AD3d 618, 618 [2007], lv denied 9 NY3d 924 [2007]).
During the cross-examination of one police officer, defense counsel elicited from theofficer that there had been prior complaints of drug-related activity at the subjectresidence and that those earlier incidents involved Graziano. Several witnesses testifiedthat the perpetrators were seeking drugs when they entered the premises. County Court,among other things, permitted defense counsel to question Graziano about her drug useon the subject night, and she admitted using cocaine as well as possessing a digital scale.Such proof adequately established Graziano's involvement in bad acts and her exposureto potential criminal charges for defendant to urge the jury that she was biased ortailoring her testimony to obtain leniency from potential prosecution and to otherwiseattack her credibility, including the veracity of her testimony that the perpetrators werearmed with a chisel and a knife.
Although the restrictive parameters placed on such proof by County Court creates aclose issue, allowing a free-wheeling general inquiry into all of Graziano's alleged drugactivities would have produced confusion regarding the issues pertinent to the trial,resulting in a mini-trial on Graziano's unrelated and marginally relevant personal drugproblems. Defendant's efforts to pursue this broad line of proof about Graziano's historywith drugs, particularly with extrinsic evidence, was sliding rapidly toward a trial on acollateral matter where the trial court has wide discretion regarding the extent permittedof such proof (see e.g. People vPowell, 27 NY3d 523, 530 [2016]; People v Allen, 24 NY3d 441, 450 [2014]). In any event,Graziano was one of several witnesses whose testimony established the elements of thecrimes and, in light of the overwhelming proof of defendant's involvement and guilt, wewould find any error by County Court harmless beyond a reasonable doubt (see People v Spencer, 20NY3d 954, 956-957 [2012]; People v Hughes, 111 AD3d 1170, 1174 [2013], lvdenied 23 NY3d 1038 [2014]).
Peters, P.J., Lahtinen and Garry, JJ., concur.
Clark, J. (concurring). I respectfully disagree with the majority's conclusion thatCounty Court properly restricted the scope of defendant's cross-examination of certainwitnesses, but agree that, in this case, the error was harmless.
While the trial court has broad discretion to limit cross-examination into collateralmatters aimed at impeaching the credibility of a witness (see People v Wilson, 100AD3d 1045, 1047 [2012], lv denied 22 NY3d 998 [2013]; People v Comfort, 60 AD3d1298, 1300 [2009], lv [*3]denied 12 NY3d924 [2009]; People v Love, 307 AD2d 528, 531 [2003], lv denied 100NY2d 643 [2003]), " 'extrinsic proof tending to establish a reason to fabricate isnever collateral and may not be excluded on that ground' " (People v Alnutt, 101 AD3d1461, 1465 [2012], lv denied 21 NY3d 941 [2013], cert denied 571US &mdash, 134 S Ct 1035 [2014], quoting People v Hudy, 73 NY2d 40, 56[1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; accord People v Spencer, 20NY3d 954, 956 [2012]). Evidence of a motive to fabricate may be excluded if it istoo remote or speculative or lacks a good-faith basis (see People v Brown, 128 AD3d 1183, 1187 [2015], lvdenied 27 NY3d 993 [2016]; People v DeFreitas, 116 AD3d 1078, 1082 [2014], lvdenied 24 NY3d 960 [2014]; People v Poole, 55 AD3d 1349, 1350 [2008], lvdenied 11 NY3d 929 [2009]).
In my view, the drugs and drug paraphernalia found at the residence andphotographed and confiscated by the police provided Desiree Graziano with a motive totailor portions of her testimony to curry favor with the prosecution in an attempt to avoidcriminal prosecution on drug charges, and defendant should have been permitted to fullydevelop that motive at trial. To defendant's detriment, County Court permitted the jury tohear evidence that the intruders demanded money and drugs when they entered theresidence, but precluded defendant from presenting a full picture of the crime scene toestablish Graziano's motive to fabricate. Although County Court permitted defensecounsel to inquire as to whether Graziano had been charged with any crimes flowingfrom the night in question or whether she had been offered a plea deal or received anypromises in exchange for her testimony, the court curtailed further cross-examination onthese subjects and the particulars of the drugs and drug paraphernalia found in theresidence. By so limiting cross-examination, County Court hampered defendant's abilityto effectively convey to the jury the precise nature of the charges to which Graziano wasexposed and the significance of her not being charged with those crimes.
The theory that Graziano fabricated portions of her testimony to avoid prosecutionon drug charges was not too remote or speculative and, given that physical evidence ofdrug dealing was plainly discovered in Graziano's residence, it did not lack a good faithbasis (see People v Hudy, 73 NY2d at 57; People v Ocampo, 28 AD3d 684, 686 [2006]). Graziano'stestimony at trial helped to establish that defendant or his accomplices "[u]se[d] orthreaten[ed] the immediate use of a dangerous instrument" during the course of thecrimes (Penal Law §§ 140.30 [3]; 160.15 [3]). In particular, Grazianotestified that she and her son were threatened with a chisel and with a white-handledparing knife. Graziano did not mention the chisel or the paring knife in her statement tothe police immediately following the crimes or during her follow-up interview with thepolice three weeks later. Considering the abundance of evidence against him, defendantsought to challenge the evidence of a dangerous weapon in the hopes that the jury wouldconvict him of lesser included crimes, rather than burglary in the first degree and robberyin the first degree. By limiting the scope of defendant's cross-examination, County Courtimpaired his ability to develop Graziano's motive to fabricate the evidence relating to thedangerous weapons and, thus, improperly restricted his cross-examination of adversewitnesses (see People v Spencer, 20 NY3d at 956; People v Ocampo, 28AD3d at 686; People v Ashner, 190 AD2d 238, 248 [1993]).
The majority asserts that allowing defendant to pursue his desired line ofcross-examination would have resulted in "a free-wheeling general inquiry" into"Graziano's unrelated and marginally relevant personal drug problems" and "a trial on acollateral matter." However, I am not suggesting that County Court should havepermitted defendant free rein to inquire into all of Graziano's alleged drug activities orher personal history with drugs. Rather, County Court should have allowed defendant toengage in a measured cross-examination regarding the particulars of the drugs and drugparaphernalia, including the drugs on the digital scale, found at [*4]the crime scene and to introduce the photographs taken ofthese items so as to provide the jury with a complete understanding of Graziano's motiveto fabricate—a matter that is never collateral.
Notwithstanding my conclusion that County Court's restriction of defendant'scross-examination was too severe, such error was, in this particular case, harmlessbeyond a reasonable doubt (see People v Spencer, 20 NY3d at 956-957).Excluding Graziano's testimony relating to the dangerous weapons, the testimony offeredby other witnesses and the recovery of a chisel and a paring knife at the scene by lawenforcement officers provided overwhelming proof establishing defendant's participationin the home invasion and the use of a weapon or dangerous instrument during thecommission of the crimes. Accordingly, I join in the majority's determination to affirmthe judgment of conviction.
Ordered that the judgment is affirmed.