People v Soto

2018 NY Slip Op 02406 [160 AD3d 444]

April 5, 2018

Appellate Division, First Department

As corrected through Wednesday, May 30, 2018

[*1]

The People of the State of New York,Respondent, v Eric Soto, Appellant.

Richard M. Weinstein, New York, for appellant.

Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November 14,2014, convicting defendant, after a jury trial, of grand larceny in the second degree and criminalpossession of a forged instrument in the second degree (48 counts), and sentencing him toconcurrent terms of 11/3 to 4 years, unanimously affirmed.

Defendant's claim that he was deprived of his right to call a witness is unpreserved, as well asunreviewable for lack of a proper record, and we decline to review it in the interest of justice. Asan alternative holding, we find no basis for reversal.

After the court reserved decision on the relevancy of the testimony of the proposed defensewitness, and before it made a ruling, defense counsel stated that the issue was moot and that thedefense was resting without calling the witness. In a CPL 330.30 (1) motion to set aside theverdict, defendant claimed, for the first time, that the absence of testimony from the proposedwitness was the product of tampering by persons possibly acting in collusion with theprosecutor.

Defendant's postverdict motion had no preservation effect (see People v Padro, 75NY2d 820 [1990]). Moreover, the issue was not cognizable under CPL 330.30 (1) because such amotion is limited to grounds appearing in the record (see People v Wolf, 98 NY2d 105[2002]; see also People v Giles, 24NY3d 1066, 1068 [2014]; People vBumbray, 63 AD3d 412 [1st Dept 2009]). In any event, in his offer of proof, defendantdid not establish the relevance of the proposed testimony, and it would have been within thecourt's discretion to exclude it in the first place (see e.g. People v Danvers, 59 AD3d 229,230-231 [1st Dept 2009], lv denied 12 NY3d 815 [2009]). Concur—Richter, J.P.,Manzanet-Daniels, Andrias, Kapnick, Webber, JJ.