| People v Watson |
| 2018 NY Slip Op 05342 [163 AD3d 855] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Watson, Appellant. |
FisherBroyles, LLP, New York, NY (Timothy C. Parlatore and Robert M. Fantone ofcounsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (WilliamGarnett, J.), rendered January 7, 2016, convicting him of criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress physical evidence, and the denial, withouta hearing, of his motion to controvert certain search warrants and to suppress certain physicalevidence seized in the execution thereof. By decisions and orders on motion dated February 25,2016, and July 15, 2016, respectively, this Court, inter alia, granted the defendant's motions tostay execution of the judgment pending the hearing and determination of the appeal.
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court,Richmond County, for further proceedings pursuant to CPL 460.50 (5).
The defendant contends that the Supreme Court erred in denying, after a hearing, that branchof his omnibus motion which was to suppress physical evidence. We disagree. The hearingtestimony established that plainclothes police officers Frank Muzikar and William Stewart wereon patrol in an unmarked vehicle within the confines of the 120th Precinct in Staten Island on theafternoon of October 26, 2013. Having been advised of a recent livery car robbery in the area, theofficers were seated in their vehicle near the intersection of Brook Street and Jersey Street whenthey observed the defendant approach a livery vehicle from the vicinity of 516 Jersey Street andlook to the left and right several times before briefly speaking to the driver through the passengerside [*2]window. According to the testimony of the driver, he hadbeen dispatched to 516 Jersey Street to pick up a passenger, and the defendant approached andasked to be driven to Victory Boulevard and Bay Street. The driver advised his dispatcher overthe radio, and the dispatcher confirmed the destination. The defendant then entered the frontpassenger seat of the vehicle.
The officers followed the livery car and observed it make two turns without signaling. At thatpoint, they activated the dome light in their vehicle and pulled the car over. Officer Stewartapproached the driver's side of the livery car, while Officer Muzikar approached the passengerside. As he did so, Officer Muzikar observed the defendant holding a cell phone with an image offive firearms on the screen. The officer then noticed the butt of a handgun on the defendant'sright hip. He asked the defendant to step out of the car and signaled Officer Stewart to comearound the vehicle to assist him. As the defendant exited the vehicle, he advised the officers thathe had a gun in his possession. Officer Muzikar recovered a black 9 millimeter Taurus handgunfrom a holster on the defendant's right hip. The gun had one round of ammunition in the chamberand 10 more rounds in the magazine. An additional magazine with 10 more rounds ofammunition was recovered from the holster.
The defendant then stated that he was a licensed gun owner, that his mother worked with theofficers at the police precinct and they should call her, and that he had been on his way to the120th Precinct station house to turn in the gun for cash at the time he was stopped. OfficerMuzikar checked the defendant's gun license and discovered that it pertained to a differentweapon—a Glock .45 caliber handgun. The officers also questioned the livery driver, whoconfirmed that the defendant had asked to be dropped off, not at the local precinct station house,but at the corner of Victory Boulevard and Bay Street. The driver also produced his "trip sheet,"on which he had noted that destination. After handcuffing the defendant and placing him underarrest, Officer Stewart conducted a pat-down search of his person and recovered a gravity knife.The officers also seized the defendant's cell phone.
In a written decision, the hearing court denied that branch of the defendant's omnibus motionwhich was to suppress the seized physical evidence, largely crediting the police officers' accountof the incident.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of hisomnibus motion which was to suppress the physical evidence. "The credibility determinations ofthe Supreme Court following a suppression hearing are entitled to great deference on appeal andwill not be disturbed unless clearly unsupported by the record" (People v Cuyler, 95 AD3d 900,900-901 [2012] [internal quotation marks omitted]; see People v Casey, 149 AD3d 770, 771 [2017]; People v Jemmott, 125 AD3d1005, 1006 [2015]). " '[A]s a general matter, the decision to stop an automobile isreasonable where the police have probable cause to believe that a traffic violation has occurred,'even if the underlying reason for the stop was to investigate another matter unrelated to the trafficviolation" (People v Sluszka, 15AD3d 421, 423 [2005], quoting People v Robinson, 97 NY2d 341, 348-349 [2001];see People v Edwards, 14 NY3d741, 742 [2010]; People vFoster, 153 AD3d 853, 853 [2017]; People v Diaz, 146 AD3d 803, 804 [2017]). Here, the courtproperly credited the police officers' testimony that they observed the livery vehicle in which thedefendant was a passenger make two turns without signaling, which justified the stop of thevehicle for the commission of a traffic infraction (see Vehicle and Traffic Law§ 1163 [a]; People vGuthrie, 25 NY3d 130, 133 [2015]; People v Patron, 141 AD3d 545, 545 [2016]; People v Davis, 103 AD3d 810,811 [2013]; People v Glover, 84AD3d 977, 978 [2011]). Officer Muzikar's observation of the butt of a gun protruding fromthe defendant's hip area, as well as the [*3]defendant's statementthat he had a gun in his possession, provided the police with probable cause to place thedefendant under arrest and to conduct the ensuing search (see People v Baksh, 125 AD3d 988, 989 [2015]; Matter of Jashaun A., 122 AD3d833, 833-834 [2014]; People vHill, 72 AD3d 702, 705 [2010]; People v Edwards, 222 AD2d 603, 604 [1995]).Contrary to the defendant's contention, the hearing testimony of the police officers was notmanifestly incredible or patently tailored to nullify constitutional objections (see People v McKenzie, 148 AD3d936, 937 [2017]; People vBoyd, 136 AD3d 935, 936 [2016]; People v Cruz, 131 AD3d 706, 706 [2015]; People v Abraham, 111 AD3d756, 757 [2013]), and the mere fact that the livery driver testified that he followed his usualpractice of signaling when making turns does not warrant a contrary finding. Accordingly, thecourt properly denied suppression.
Further, the Supreme Court properly denied, without a hearing, the defendant's motion tocontrovert the warrants authorizing the search of his cell phone, since the defendant failed tomake the requisite substantial preliminary showing that the warrants were based upon affidavitscontaining statements that were knowingly or intentionally false or made with reckless disregardfor the truth (see People v Alfinito, 16 NY2d 181, 186 [1965]; People v Moshier, 110 AD3d 832,833 [2013]; People v McGeachy, 74AD3d 989, 990 [2010]; People v Novick, 293 AD2d 692, 692 [2002]). The courtcorrectly determined that, notwithstanding some relatively minor alleged discrepancies in thesupporting affidavits, none of the arguments proffered by the defense undermined the credibilityof those police affidavits regarding the observation of a photographic image of firearms on thescreen of the defendant's cell phone. In short, the evidence presented to the issuing magistrateand properly credited by the Supreme Court sufficed to establish probable cause for the issuanceof the challenged warrants (see People v Tambe, 71 NY2d 492 [1988]).
The defendant further contends that the Supreme Court erred in admitting into evidence attrial two unredacted photographs discovered on the defendant's cell phone that displayed whatappeared to be multiple handguns. The first photograph, which depicted what appeared to be fivefirearms, was the same image that Police Officer Muzikar initially observed on the defendant'scell phone at the time he approached the livery vehicle. The second photograph depicted whatappeared to be four guns and had been taken several months prior to the defendant's arrest.Significantly, the defendant did not challenge the introduction of the photographs to the extentthat they depicted either the .45 caliber Glock handgun for which he possessed a premises permit,or the 9 millimeter Taurus handgun which he possessed at the time of his arrest. However, thedefendant argued that the images of the other firearms should be redacted from the photographs,since they would unfairly suggest that he had a propensity to illegally possess handguns. Thecourt ultimately rejected the argument, reasoning that the probative value of the unredactedphotographs outweighed their prejudicial effect because they would complete Officer Muzikar'snarrative regarding the image he observed on the defendant's cell phone when he approached thelivery vehicle, and the photographs would also be relevant in negating the defendant's assertionthat, despite being an avid gun enthusiast, he had intended to surrender part of his collectionthrough a gun buy-back program at the time of his arrest. The court further indicated that itwould provide the jurors with a limiting instruction regarding the photographs, directing that theycould not be considered as evidence of the defendant's general propensity to commit the offenseof criminal possession of a firearm. The court subsequently instructed the jury in thisfashion.
Evidence of uncharged crimes is inadmissible when it is proffered solely to establish anaccused's propensity to commit crime (see People v Agina, 18 NY3d 600, 603 [2012]; People v Arafet, 13 NY3d 460,464-465 [2009]; People v Alvino, 71 NY2d 233, 241 [1987]; People v Fiore, 34NY2d 81, 84 [1974]). However, such evidence may be received to establish an element of thecharged crime, or because [*4]it is relevant to some other materialissue in the case (see People vDorm, 12 NY3d 16, 19 [2009]; People v Alvino, 71 NY2d at 241; People vLewis, 69 NY2d 321, 325 [1987]; People v Allweiss, 48 NY2d 40, 46-47 [1979];People v Molineux, 168 NY 264, 291-294 [1901]). If the proffered evidence is probativeof a relevant issue, the court must then engage in a discretionary balancing of its probative valueand the need for the evidence against the potential for prejudice to the defendant (see People v Morris, 21 NY3d588, 595 [2013]; People v Dorm, 12 NY3d at 19; People v Alvino, 71 NY2dat 242; People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Allweiss, 48NY2d at 47). Here, while the unredacted photographs at issue bore some marginal relevance tothe testimony in this case, we agree with the defendant that said relevance was outweighed by thepotential for prejudice arising from the depiction of what appeared to be other firearms in thephotographs. However, while the Supreme Court improvidently exercised its discretion indeclining to redact the subject photographs, we disagree with our dissenting colleague that thedefendant was "severely prejudiced" by the error. Rather, we conclude that the evidence of thedefendant's guilt, without reference to the error, was overwhelming, and there was no significantprobability that the jury would have acquitted the defendant had it not been for the error (seePeople v Arafet, 13 NY3d at 467-468). During his opening statement, defense counselconceded that the defendant told the arresting officers that he possessed the gun without alicense. Further, the defendant's statement to the officers that he was on his way to surrender thegun at the precinct station house was refuted, inter alia, by the manner in which he carried theloaded gun in a holster on his hip, and by the fact that he provided the livery driver with adestination other than the precinct station house. Indeed, these circumstances were utterly at oddswith his claim of innocent possession (see generally People v Banks, 76 NY2d 799[1990]). Accordingly, the error was harmless (see e.g. People v Gillyard, 13 NY3d 351, 356 [2009]; People v Littlejohn, 112 AD3d 67,77 [2013]).
The defendant additionally contends that the Supreme Court erred in prohibiting him fromcross-examining Officer Muzikar regarding the underlying facts of three settled federal civilrights lawsuits that had been commenced against him and other members of the New York CityPolice Department, since they allegedly bore some relevance to Officer Muzikar's credibility andpurported bias. After reviewing the complaints and stipulations of settlement in those cases, thecourt determined that such questioning would be inappropriate given the general and conclusorynature of the allegations in the civil rights lawsuits and the lack of any specific wrongdoingalleged against Officer Muzikar individually therein. The court reasoned that the proposedquestioning would have only slight probative value, which would be outweighed by the strongpotential for prejudice given the disproportionate significance which the lawsuits might beaccorded.
It is a settled principle that "law enforcement witnesses should be treated in the same manneras any other witnesses for purposes of cross-examination" (People v Smith, 27 NY3d 652, 661-662 [2016]). Thus, subject tothe broad discretion of the trial court in supervising cross-examination, "specific and relevantallegations of misconduct in a civil action filed against a law enforcement officer may be used forthe limited purpose of impeaching that law enforcement witness at trial" (People v Casey,149 AD3d at 772; see People vGarrett, 23 NY3d 878, 886 [2014]). Where, as in the present case, the underlying civilactions proffered as impeachment material have been settled without any admission ofwrongdoing, a defendant is not permitted to ask the police witness whether he has been sued,whether the case was settled, or whether the underlying criminal charges relating to the plaintiffsin the civil actions were dismissed. However, in such cases, "defendants should be permitted toask questions based on the specific allegations of the lawsuit if the allegations are relevant to thecredibility of the witness" (People v Smith, 27 NY3d at 662). An assessment of thepropriety of such questioning requires that defense counsel first "present a good faith basis forinquiring, namely, the lawsuit relied upon; second, specific allegations [from the lawsuit] that are[*5]relevant to the credibility of the law enforcement witnessmust be identified; and third, the trial judge [must exercise] discretion in assessing whetherinquiry into such allegations would confuse or mislead the jury, or create a substantial risk ofundue prejudice to the parties" (id.; see People v Enoe, 144 AD3d 1052, 1053-1054 [2016]).
Applying the foregoing criteria to the present matter, we conclude that the Supreme Courtdid not improvidently exercise its broad discretion in precluding defense counsel from inquiringinto the underlying facts of two of the three federal lawsuits at issue. The complaints in thoseactions only contained broad conclusory allegations of unlawful police action by large groups ofofficers, and did not set forth specific acts of misconduct against Officer Muzikar individually.Since "the specific allegations must be relevant to [the] witness's credibility" (People vSmith, 27 NY3d at 662), we decline to disturb the court's discretionary ruling with respect tothose matters (see e.g. People vAndrew, 54 AD3d 618, 618-619 [2008]). However, we further conclude that the courtimprovidently exercised its discretion in precluding cross-examination of Officer Muzikar as tothe underlying facts of the third lawsuit. The complaint in that lawsuit specifically alleged thatOfficer Muzikar and two fellow officers pulled the plaintiffs' vehicle over, ordered the plaintiffsout of their car, and conducted a search of the vehicle without probable cause. Moreover, uponrecovering a small folding knife from the glove compartment, the officers allegedly falselyclaimed that the object was in fact a gravity knife, and placed the plaintiffs under arrest for itspossession. In our view, these specific allegations of misconduct, focusing on Officer Muzikarindividually, were proper material for defense counsel's efforts to impeach the officer at trial, andthe proposed questioning with regard to the underlying facts of this lawsuit should have beenpermitted (see People v Smith, 27NY3d 652 [2016]; People vEnoe, 144 AD3d 1052 [2016]).
Nevertheless, for the reasons discussed previously, we find that the error was harmless underthe circumstances of this case. Indeed, even if the questioning with respect to all three of thefederal lawsuits should have been permitted, the evidence of the defendant's guilt wasoverwhelming. The defendant did not contest Officer Muzikar's testimony that the defendantadmitted his unlicensed possession of the subject handgun and told the officers that he was on hisway to turn in the weapon at the precinct station house at the time of his arrest. Accordingly,there is no significant probability that the jury would have acquitted the defendant had defensecounsel been permitted to impeach Officer Muzikar with regard to the facts underlying any or allof the federal lawsuits (see People v Smith, 27 NY3d at 665, 670; see generallyPeople v Kello, 96 NY2d 740, 744 [2001]).
The defendant next contends that the Supreme Court improperly curtailed his questioning ofa defense witness regarding a statement the defendant allegedly made to the witness, andregarding conversations that witness allegedly engaged in with the defendant regarding NewYork's gun buyback program. By way of background, we again observe that, during its directcase, the prosecution elicited testimony from Officer Muzikar that when the defendant exited thelivery vehicle at the direction of the officers, he advised them that he was carrying a gun and thathe was on his way to the precinct station house to turn the gun in for payment under the buybackprogram. Since this police testimony effectively raised on behalf of the defendant the defense oftemporary lawful possession of the handgun pursuant to the exemption from criminal liability fora person engaged in the voluntary surrender of a weapon to the authorities (see Penal Law§ 265.20 [a] [1] [f]), the burden was on the prosecution to disprove the defensebeyond a reasonable doubt (see Matter of Nikim A., 179 AD2d 638, 639 [1992];People v Roccaforte, 141 AD2d 775, 775 [1988]; People v Montgomery, 106AD2d 410, 411 [1984]). The prosecution sought to sustain this burden by eliciting evidence[*6]demonstrating, inter alia, that the defendant's destination inthe livery car was not the precinct station house, but an intersection bordering a public park thatwas located approximately one-half mile from the precinct station house. Similarly, theprosecution presented evidence that the defendant was wearing the handgun in a holster on hiship, and that the gun was loaded with a total of 11 rounds of ammunition, with an additionalmagazine containing 10 more rounds in the holster, circumstances which reasonable jurors coulddetermine were inconsistent with the imminent surrender of the firearm to the police.
At the conclusion of the direct case, the prosecution rested and the jury was returned to thejury room so that the Supreme Court could consider defense motions and schedule the remainderof the trial. When the court asked defense counsel whether he intended to present any witnesses,counsel referred to a witness list. The court then asked for an offer of proof, stating "I want toknow what they're being called for. For example, people cannot take the witness stand and saythat the defendant called me and told me I was going-I was on my way to the 120 Precinct tohand in the gun. That would be inadmissible hearsay." Defense counsel conceded that he hadintended to elicit such testimony from the defendant's wife and from Crystal Armstrong, thedefendant's mother-in-law and an employee at the 120th Precinct station house. Counseldisagreed with the court's view, insisting, as he does on appeal, that testimony by Armstrongregarding such a statement by the defendant would be admissible as a prior consistent statementto rebut an allegation by the prosecution of a recent fabrication by the defendant. Following alengthy discussion of the issue on the record, the court held that the proffered testimony byArmstrong with respect to the defendant's previous statements to her would not be admitted as aprior consistent statement.
At the outset, we disagree with the defendant's contention, and the position of our dissentingcolleague, that the Supreme Court's ruling with regard to potential hearsay testimony byArmstrong was biased and procedurally inappropriate because it was not preceded by anobjection or motion in limine by the prosecution. A trial court enjoys "broad authority 'to controlthe courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite theproceedings and to admonish counsel and witnesses when necessary' " (Porter vSaar, 260 AD2d 165, 167 [1999], quoting Campbell v Rogers & Wells, 218AD2d 576, 579 [1995]). This authority "to control the conduct of the trial" (Chary v State ofNew York, 265 AD2d 913, 914 [1999]) encompasses "broad discretion in controlling thescope of direct, cross, and redirect questioning" (Caserta v Levittown School Dist., 12 AD3d 549, 550 [2004]; see Georgescu v City of New York,107 AD3d 946, 947 [2013]), including placing limits on the examination of a witness whereappropriate (see People v Cain, 34AD3d 1256 [2006]; People vDuran, 6 AD3d 809, 810 [2004]; Ingebretsen v Manha, 218 AD2d 784 [1995]).Here, the court appropriately exercised its broad discretion by preventing inadmissible hearsaytestimony from being elicited at trial, thereby avoiding any improper influence such evidencemight have had on the jury. The court was not required to passively await an attempt to elicitsuch inadmissible testimony before the jury, and the inevitable objection by the prosecution thatwould follow, before ruling on the issue. Similarly, the court's action did not blindside thedefense. Rather, the trial record demonstrates that the court expressed its concern over thepotential hearsay problem in advance of the witness taking the stand and patiently discussed theissue at length with counsel outside the jury's presence before finalizing its ruling and resumingthe trial. Contrary to the defendant's current contention, and the position of our dissentingcolleague, the court properly ruled that the proffered hearsay testimony regarding statementsmade by the defendant to Armstrong was not admissible under a prior consistent statementtheory.
[*7] "A witness' trial testimony ordinarily maynot be bolstered with pretrial statements (People v McClean, 69 NY2d 426, 428;see, People v Singer, 300 NY 120, 123-124; People v O'Sullivan, 104 NY481, 486). Several rationales underlie the rule: untrustworthy testimony does not become less somerely by repetition (People v McClean, 69 NY2d, at 428, supra); testimonyunder oath is preferable to extrajudicial statements (Crawford v Nilan, 289 NY 444, 451);and litigations should not devolve into contests as to which party could obtain the latest versionof a witness' story (id. [at 451])" (People v McDaniel, 81 NY2d 10, 16 [1993]).However, a recognized exception to the prohibition against such bolstering "permits evidence ofprior consistent statements when the witness' testimony is assailed as a recent fabrication"(People v McClean, 69 NY2d 426, 428 [1987]), provided that the proffered priorconsistent statement was made at a time before the motive arose for the witness to testifyfalsely.
Initially, the use of a prior consistent statement to rehabilitate the credibility of a testifyingdefendant has no application in this case for the simple reason that this defendant did not take thestand and testify at any point in this matter. Indeed, Guide to New York Evidence rule 8.31 (PriorConsistent Statement,https://www.nycourts.gov/judges/evidence/8-HEARSAY/8.31_PRIOR%20CONSISTENT%20STATEMENT.pdf) clearly contemplates that such rehabilitation is only available to a witness whohas given testimony at the proceeding: "A statement of a witness made prior to his or hertestimony and consistent with that testimony is admissible when offered to rebut an expressor implied claim of recent fabrication and when the statement was made prior to thecircumstances supporting that claim" (emphasis added). Furthermore, the testimonial nature ofthe rule is reinforced by relevant case law, which consistently has limited the proper admission ofprior consistent statements to those instances where a witness has taken the stand and subjectedhimself to the crucible of cross-examination, during which the adverse party has sought toimpugn the credibility of the witness by suggesting that the testimony is the product of a recentlyacquired motive to lie (see e.g. People vSmith, 22 NY3d 462, 465-466 [2013] ["(p)rior consistent statements will often be lessprejudicial to the opposing party than other forms of hearsay, since by definition the maker ofthe statement has said the same thing in court that he said out of it, and his credibility canbe tested by cross-examination" (emphasis added)]; People v Buie, 86 NY2d 501,510 [1995] ["the prior consistent statement prohibition and exception are anchored to theimpeachment and rehabilitation of witnesses" (emphasis added)]; People vMcDaniel, 81 NY2d at 18 ["(i)f upon cross-examination a witness' testimonyis assailed . . . as a recent fabrication, the witness may be rehabilitated with priorconsistent statements that predated the motive to falsify" (emphasis added)]; People vMcClean, 69 NY2d at 428 ["if the cross-examiner seeks to impeach thewitness by evidence tending to show that his testimony is of recent invention . . , theparty calling the witness . . . may show that the witness made statements similar tohis trial testimony at some earlier time when he was free from the alleged bias" (emphasisadded)]; Ferris v Sterling, 214 NY 249, 254 [1915] ["where the testimony of awitness is assailed as a recent fabrication, it may be confirmed by proof of declarations of thesame tenor before the motive to falsify existed" (emphasis added)]).
Here, as an essential part of its case-in-chief, the prosecution elicited, through the testimonyof a police officer, the defendant's statement regarding his intent to surrender the gun. As was hisright, the defendant elected not to take the stand and subject himself to cross-examination,instead relying upon the officer's testimony to establish his defense of temporary lawfulpossession of the weapon. Having so elected, he foreclosed any possibility that the prosecutorwould cross-examine him and challenge his defense as a recent fabrication during suchquestioning. Thus, since the requisite claim of a recent fabrication was absent, the defendantcould not adduce evidence of a prior consistent statement to rebut it (see People v Gross, 26 NY3d 689,694 [2016] ["it is generally improper to introduce testimony that the witness had previously madeprior consistent statements, [*8]when there is no claim of eitherprompt outcry or recent fabrication"]; People v Buie, 86 NY2d at 510 [prior consistentstatement evidence "may be admissible, but only to rebut a claim of recent fabrication"];People v McClean, 69 NY2d at 428 ["(a)n impeached witness cannot be rehabilitated byhis antecedent consistent statements unless the cross-examiner has created the inference of, ordirectly characterized the testimony as, a recent fabrication"]). In this regard, the defendant'sassertion that, during her opening statement, the prosecutor accused him of a recent fabrication iswithout merit. Rather, the prosecutor merely proposed to the jury that the defendant's claim thathe was going to the precinct station house to surrender the gun would be contradicted by thelivery driver's testimony regarding the different destination to which the defendant had asked tobe driven. Such an opening statement is not the evidentiary equivalent of confronting thedefendant on cross-examination with a claim of recent fabrication and thus lacks the testimonialelement required for the admission of a prior consistent statement. Moreover, the prosecutornever accused the defendant of recently altering his account or concocting a newexplanation for his possession of the gun, but instead maintained that the defendant's explanationhad been false from its inception (see generally People v Singer, 300 NY at 124 [a recentfabrication arises where the cross-examiner "is charging the witness not with mistake orconfusion, but with making up a false story well after the event" so as to suggest that histestimony "(has been) fabricated to meet the exigencies of the case"]). Under thesecircumstances, the use of an alleged prior consistent statement to rehabilitate the defendant'scredibility was unavailable (see People v McDaniel, 81 NY2d at 18; People vDavis, 44 NY2d 269, 277-278 [1978]).
Despite acknowledging the facial inapplicability of the prior consistent statement rule to thiscase, our dissenting colleague nevertheless posits that the defendant's argument in this regard ispersuasive because the rationale for the admission of such a statement is present here, and it was"unjust" to exclude it. We merely note in response that the admissibility of the statement must begoverned by the rules of evidence. It would be manifestly unfair to permit the defendant topresent a statement that he made at the time of arrest through the testimony of a police officer,thereby insulating the defendant from cross-examination as to the truth of that statement, and tothen allow the defendant to bolster the credibility of that statement through the introduction ofhearsay testimony from yet another witness.
Unlike the defendant, who solely relies on an inapplicable prior consistent statement analysisin contending in his appellate brief that it was error to exclude evidence of the statement heallegedly made to Armstrong, our dissenting colleague instead primarily argues that Armstrong'sproffered testimony regarding the defendant's alleged statement to her of his intention tosurrender the gun should have been admitted as evidence of the defendant's state of mind ratherthan for the truth of its contents, thereby obviating any hearsay objection. However, thedefendant never advanced this "state of mind" argument at the trial level, nor does he currentlycontend on this appeal that his purported statement to Armstrong should have been admitted asevidence of his state of mind. Accordingly, this issue is both unpreserved for appellate review(see CPL 470.05 [2]; People vMoore, 66 AD3d 707, 710 [2009], affd 15 NY3d 811 [2010]) and not before thisCourt for consideration on the present appeal (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]; Crane, A.G. v 206 W. 41st St. HotelAssoc., L.P., 87 AD3d 174, 179 [2011]; People v Moore, 66 AD3d at 710). Wefurther note that "the statement was irrelevant unless offered to prove the truth of the matterasserted . . . and for that purpose it was inadmissible hearsay" (People vReynoso, 73 NY2d 816, 819 [1988]).
The defendant does presently argue a "state of mind" hearsay exception with respect to theSupreme Court's expansion of its ruling to also prohibit testimony regarding any discussions[*9]between Armstrong and the defendant about the topic ofsurrendering a gun under the buyback program, an analytically distinct aspect of Armstrong'spotential testimony which our dissenting colleague conflates with the defendant's prior consistentstatement. However, despite the court's request for an offer of proof as to Armstrong's anticipatedtestimony, defense counsel never proffered evidence of any such conversations or discussionswhich he intended to elicit from her. Rather, counsel advised the court that, in addition to havingArmstrong testify for the purpose of relating the defendant's prior consistent statement, his offerof proof was that she would also be asked only to authenticate photographs that she took of gunbuyback posters that were displayed in public areas of the precinct station house, testimonywhich the court agreed would be proper. At that point, the court instructed Armstrong that shecould not testify as to the defendant's prior consistent statement to her, and that she was furtherprohibited from testifying "to any conversations that you initiated with him. So no conversationsback and forth will be allowed." Significantly, defense counsel voiced no objection of any kind tothis additional restriction, thereby suggesting that he had no evidence of such conversations tooffer, and instead went on to elicit testimony from Armstrong regarding the buyback program,the prominent display of the program posters at the precinct station house, and the defendant'svisits to the precinct station house while the posters were displayed there. Accordingly, thedefendant's current contention, raised for the first time on appeal, that the court should havepermitted unoffered evidence of unspecified discussions between Armstrong and the defendantregarding the buyback program under a "state of mind" hearsay exception, is unpreserved forappellate review (see CPL 470.05 [2]; People v Gurdon, 153 AD3d 1430 [2017]; People v Pickett, 153 AD3d 940[2017]). The defendant's failure to place this issue on the record precludes our effective review ofthe speculative arguments he now makes in this regard.
We note that our dissenting colleague's suggestions that such testimony was actually offeredby the defense, and that defense counsel actually argued at trial that it was admissible to establishthe defendant's state of mind (see generally People v Ricco, 56 NY2d 320, 328 [1982]; People v Gibian, 76 AD3d 583,585 [2010]; People v Kass, 59AD3d 77, 86-87 [2008]), are without support in the record. Rather, the record reveals that, asa brief afterthought to his lengthy and legally inapposite "prior consistent statement" argument,defense counsel made only a conclusory assertion that his client's statement to Armstrong wouldconstitute admissible nonhearsay. Significantly, defense counsel at no point in the trial positedthat any testimony by Armstrong regarding conversations with the defendant should be admittedto prove the defendant's state of mind. Moreover, the mere perfunctory utterance that a statementwas "not hearsay" or was "nonhearsay" completely failed to apprise the Supreme Court that thedefendant was invoking the state of mind exception to the hearsay rule.
Likewise, our dissenting colleague's alternative reasoning—that any attempt bydefense counsel to make an offer of proof regarding Armstrong's testimony or to preserve this"state of mind" argument at trial was somehow "preempted" by the court's evidentiaryruling—is unpersuasive. Indeed, rather than foreclosing any further discussion of thematter following its initial ruling, the court patiently continued to hear, over two days of trial,encompassing some 13 pages of the trial transcript, defense counsel's arguments regarding theadmissibility of Armstrong's hearsay testimony. During that argument, defense counsel did infact provide the court with an offer of proof as to other matters to which Armstrong wouldtestify, but made no mention of any conversations she specifically initiated with the defendant.Thus, the failure to provide such an offer of proof and to preserve the "state of mind" contentionwas not caused by any lack of receptiveness on the part of the court, but was instead attributableto defense counsel's failure to bring these matters to the court's attention despite having ampleopportunity to do so. Given these shortcomings, the analysis [*10]by the defendant and our dissenting colleague of what Armstrongmight have testified to, and the significance that such theoretical testimony might have had onthe case, is speculative. Simply put, the current arguments of the defendant and our dissentingcolleague in this regard cannot be evaluated in the absence of an offer of proof as to whatArmstrong's proposed trial testimony would have been, and an assertion at trial that suchproffered testimony, whatever it might be, would have been admissible pursuant to the state ofmind exception. Accordingly, the court's ruling with regard to Armstrong's testimony mostassuredly did not deprive the defendant of his right to present a defense—it merelyprevented him from eliciting his own hearsay statements through the testimony of hismother-in-law, rather than by taking the stand and testifying to any such conversation himself.While the defendant clearly was not required to testify at trial, he is required to live with thisconsequence of his decision not to do so.
Contrary to the defendant's further contention, the Supreme Court appropriately limited thedefense summation to matters of evidence that were properly adduced at trial (see People vRomano, 301 AD2d 666, 667 [2003]). The court also properly sustained the prosecutor'sobjections to defense summation comments that were based on wholesale speculation, violatedthe court's evidentiary rulings, or were not fair comment on the evidence (see People v Paixao, 23 AD3d677, 678 [2005]; People v Bistonath, 216 AD2d 478, 479 [1995]; People vBarreau, 183 AD2d 904 [1992]).
As the People correctly concede, the prosecutor's comment that defense counsel "can't lie to ajury," made during an exchange with defense counsel following an objection to the defensesummation, was improper. However, this single remark did not deprive the defendant of a fairtrial. Moreover, the effect of the remark must be evaluated in the context of the defensesummation, wherein counsel repeatedly accused the arresting officer of lying and suggested thatthe defendant's wife may have possessed a license for the subject handgun or other handgunsdepicted in prosecution exhibits—a completely speculative and unsupported assertionwhich prompted the prosecutor's objection in the first instance. The effect of the remark mustfurther be considered in light of the corrective action taken by the Supreme Court in response tothe prosecutor's remark (see People v Galloway, 54 NY2d 396 [1981]; People v Peters, 98 AD3d 587, 589[2012]; People v Johnson, 154 AD2d 618, 619 [1989]; People v Gilmore, 106AD2d 399 [1984]). We conclude that any error in regard to the remark was harmless (see People v Roscher, 114 AD3d812 [2014]; People v Littlejohn, 112 AD3d at 77). Indeed, the evidence of thedefendant's guilt was overwhelming, and in view of the trial court's subsequent instruction to thejury, there was no significant probability that the jury would have acquitted the defendant had itnot been for the error (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Davis, 39 AD3d 873, 875[2007]; People v Roccaforte, 141 AD2d at 776).
Finally, we find unpersuasive the defendant's contention that his sentence of a 5-yeardeterminate term of imprisonment for criminal possession of a weapon in the second degree wasexcessive. Pursuant to Penal Law § 70.02 (3) (b), the defendant faced a determinateterm ranging from 3
In imposing sentence, the Supreme Court heard arguments from the prosecution and thedefense, and then observed that from the outset of the case, the defendant had sought to avoidresponsibility for his criminal conduct through various means—by claiming that he waslicensed to carry the gun, by invoking the influence of his mother-in-law who worked at theprecinct station house, and by falsely claiming that he was surrendering the gun to the authoritieseven though he was wearing the loaded weapon on his hip and was traveling to a destinationother than the precinct station house at the time of his arrest. These circumstances wereparticularly disturbing given that the defendant was employed in the security business andalready possessed a premises permit for a different, lawfully registered handgun, indicating thathe was well aware of gun licensing requirements and nevertheless disregarded them in this case.The court further observed that the defendant had a gravity knife on his person, and that hiscontinuing explanations for his possession of the handgun were patently false and manifestlycontradicted by logic and the evidence. Weighing the defendant's lack of a criminal background,his failure to take responsibility for his offenses, and his lack of remorse, the court imposed thefive-year term as a sentence which reflected the serious nature of the crime while acknowledgingthe defendant's status as a first-time offender.
Since the Supreme Court carefully weighed the appropriate factors in reaching its sentencingdetermination (see People v Young, 94 NY2d 171, 181-182 [1999]; People vFarrar, 52 NY2d 302, 305-306 [1981]), we discern no improvident exercise of discretion inthe sentence imposed by the court. Moreover, upon our consideration of all relevant sentencingfactors, we do not find the sentence to be excessive. Mastro, J.P., Leventhal and BrathwaiteNelson, JJ., concur.
Barros, J., dissents, votes to reverse the judgment, on the law, and order a new trial, with thefollowing memorandum: I respectfully dissent and vote to reverse the judgment of convictionbecause the Supreme Court's erroneous rulings that (1) sua sponte precluded certain testimony ofdefense witnesses, (2) limited defense counsel's cross-examination of an arresting officer, (3)allowed the introduction into evidence of unredacted photographs suggesting that the defendantwas guilty of similar uncharged crimes, and (4) curtailed defense counsel's summation, deprivedthe defendant of his constitutional rights to present a defense and a fair trial. In any event, theimposition of a 5-year determinate term of imprisonment was unduly harsh and severe, and Iwould vote to reduce the sentence to the minimum of a 3
At trial, the People presented evidence that at approximately 3:10 p.m. on October 26, 2013,Police Officers Frank Muzikar and William Stewart of the Staten Island Gang Squad becamesuspicious of the defendant when they observed him enter the front seat of a livery cab. Theofficers claimed that they stopped the livery cab after it made two turns without signaling. Afterapproaching the vehicle, Officer Muzikar purportedly noticed the butt of a gun protruding fromthe defendant's waistband. The defendant informed the officers that he was in possession of thegun, and that, among other things, he was on his way to the 120th Precinct station house, wherehis mother worked, to surrender the firearm as part of the New York City Police Department'sGun [*12]Buyback Program. The People argued, inter alia, thatthe defendant's excuse was a fabrication, and that he was not on his way to the precinct stationhouse.
Penal Law § 265.20 (a) (1) (f) provides an exemption or immunity fromprosecution to a person who voluntarily surrenders a firearm under procedures and protocolsestablished by local law enforcement officials. The New York City Police Departmentimplemented Penal Law § 265.20 (a) (1) (f) by establishing a Gun BuybackProgram whereby the police department pays $100 to any individual turning in a qualifyingweapon to any precinct, allows such individuals to surrender such weapon at any time, and asksno questions of such individuals. Since the defendant raised the exemption under Penal Law§ 265.20 (a) (1) (f) as his defense, the People were required to disprove theexemption beyond a reasonable doubt (see generally People v Santana, 7 NY3d 234, 236-237 [2006];People v Kohut, 30 NY2d 183, 187 [1972]; see also Matter of Nikim A., 179AD2d 638, 639 [1992]; People v Roccaforte, 141 AD2d 775, 775 [1988]; People vMontgomery, 106 AD2d 410, 411 [1984]; William C. Donnino, Practice Commentaries,McKinney's Cons Laws of NY, Book 39, Penal Law § 265.20 at 412 [2017ed]).
After the People rested their case, the defendant sought to call witnesses to testify regarding,among other things, pre-arrest conversations about the defendant's intention to surrender the gunat the 120th Precinct station house pursuant to the Gun Buyback Program. One of those proposedwitnesses, Crystal Armstrong, was a senior police administrative aid at the 120th Precinct stationhouse who had been employed by the New York City Police Department for 27 years, and wasthe defendant's mother-in-law. Indeed, in its case-in-chief, the prosecution introduced thestatement the defendant made at the time of his arrest, in which he indicated that his "mother"worked at the 120th Precinct station house. The defendant's witness list included both of theproposed witnesses, Armstrong and the defendant's wife, and the prosecutor never moved topreclude or limit those witnesses' testimony. Even so, when defense counsel informed theSupreme Court that he intended to call those witnesses, the court, sua sponte, ruled thattestimony regarding any of the proposed witnesses' conversations with the defendant about thedefendant's intention to surrender the gun pursuant to the Gun Buyback Program would beprecluded on the ground that such testimony would violate the rule against hearsay.
Courts "are not in the business of blindsiding litigants," who expect us to makedeterminations on rationales advanced by the parties, not arguments their adversaries never made(Misicki v Caradonna, 12 NY3d511, 519 [2009]). Given the defendant's statement at the time of his arrest, the prosecutionwas well aware of the defendant's purpose in calling Armstrong to testify. The majority'sassertion that the prosecution would have inevitably objected to Armstrong's testimony isspeculative. The prosecution knew the defense theory, knew the identity of the proposedwitnesses, did not comment on the Supreme Court's sua sponte ruling, and did not respond to thedefendant's argument in opposition to that ruling. The majority's assertion that the court's rulingfollowed a lengthy and patient discussion of the relevant issues is belied by the record. Rather,the court's sua sponte ruling preceded the discussion. Half-way through the trial and after theprosecution rested, defense counsel was placed in the unenviable position of having to confrontthe court on a sua sponte ruling that had the effect of eviscerating the defense. Even accepting astrue that a trial court's authority to control the conduct of a trial includes raising, on its own, inlimine evidentiary objections on behalf of a party, such authority cannot justify a ruling so broadso as to deprive a defendant of the right to present a defense.
Under certain circumstances, the right to present a defense, which is "one of the[*13]'minimum essentials of a fair trial' " (People v Gibian, 76 AD3d 583,585 [2010], quoting Chambers v Mississippi, 410 US 284, 294 [1973]) "encompasses theright to place before the jury secondary forms of evidence, such as hearsay" (People vGibian, 76 AD3d at 585). The Supreme Court's overly broad preclusion ruling, issued suasponte, was based upon a mechanistic application of the hearsay rule which, in effect, deprivedthe defendant of his fundamental right to present a defense (see Chambers v Mississippi,410 US at 302).
Any difficulty my colleagues have in reviewing the defendant's arguments in support of theadmissibility of Armstrong's proposed testimony is a result of the Supreme Court's sua sponteruling, and not due to the failure of the defendant to properly take exception to that ruling, ormake further offer of proof. Indeed, when making its ruling, the court stated, "[p]eople cannottake the witness stand and say that the defendant called me and told me I was going—Iwas on my way to the 120 Precinct to hand in the gun. That would be inadmissible hearsay." Thatstatement by the court preempted the offer of proof that the defendant was asked to make. Inresponse to the court's ruling, defense counsel stated that he "completely disagree[d]," and thus,confirmed that the defendant, in fact, was going to call Armstrong to testify that the defendanttold her that he was intending to surrender the gun at the precinct station house. When the courtindicated that it was firm in its ruling that the proposed testimony constituted inadmissiblehearsay, defense counsel then argued that Armstrong's testimony was admissible as a priorconsistent statement to rebut a charge of recent fabrication.
Once the Supreme Court made clear its position that the defendant would not be permitted toelicit any testimony from Armstrong referencing a conversation with the defendant about the GunBuyback Program, or disclosing the contents of such conversation, defense counsel was notrequired "to make repeated pointless protests" in order to preserve for appeal all the possiblebases for admissibility of the proposed testimony (People v Mezon, 80 NY2d 155, 161[1992]; see People v Vargas, 123AD3d 1149, 1150 [2014]; People vFlorestal, 53 AD3d 164, 168 [2008]). Thus, contrary to the majority's determination, thedefendant was not required to again object when the court informed Armstrong about its rulingand advised her that she "may not testify to any statement made to you by the defendant in regardto his intentions in regard to the weapon, . . . specifically that it was his intention toturn the weapon into the precinct" and, in addition, that she "may not testify to any conversationsthat [she] initiated with him."
Even so, immediately before Armstrong took the stand, defense counsel argued thatArmstrong could testify about a statement made "prior to the arrest and, therefore, it could beconsidered by the jury the fact it was said and the timeline . . . it's still admissibleand nonhearsay for that purpose." Later, defense counsel repeated his arguments that theproposed testimony was "not hearsay" and constituted "admissible nonhearsay." Given the natureof the defendant's innocent possession defense, it was obvious that the defendant was attemptingto introduce evidence of his intention or state of mind, and the People lodged no objection tosuch evidence.
Contrary to the statement of my colleagues in the majority, the defendant continues to argueon appeal that the precluded testimony was probative of his "state of mind." The defendantcontends that he sought to "elicit testimony related to Ms. Armstrong's knowledge of [thedefendant's] intention to voluntarily surrender a firearm prior to his arrest" (emphasisadded).
The Supreme Court's assumption that all of the proposed testimony relating to thedefendant's pre-arrest conversations with the proposed witnesses constituted per se inadmissible[*14]hearsay was patently incorrect. The court's evidentiaryruling, in effect, prevented the defendant from offering witness testimony as to (1) what, ifanything, the witnesses told the defendant prior to his arrest about the Gun Buyback Program,and (2) what, if anything, the defendant told the proposed witnesses prior to his arrest regardinghis intention to avail himself of the program.
Armstrong's proposed testimony about her own statements to the defendant about the GunBuyback Program do not constitute hearsay. Such testimony may be offered for the effect that herstatements had on the defendant's state of mind, not the truth of the matter asserted (seePeople v Gibian, 76 AD3d at 585;People v Kass, 59 AD3d 77, 86-87 [2008]). Armstrong's purported statements to thedefendant about the Gun Buyback Program would be relevant circumstantial evidence supportingthe defendant's claim that he intended to surrender the weapon in accordance with the GunBuyback Program (see People v Minor, 69 NY2d 779 [1987]; People v Gibian,76 AD3d at 585; People v Kass, 59 AD3d at 87).
Armstrong's proposed testimony about the defendant's statements to her regarding hisintention to surrender the gun at the precinct station house squarely meets the state of mindexception to the hearsay rule. "It is well recognized that the hearsay rule does not exclude theadmission of out-of-court statements demonstrating the state of mind of the declarant when thatstate of mind is an issue in the case" (People v Chambers, 125 AD2d 88, 91 [1987]).Moreover, "when a particular act of the declarant is at issue, the declarant's statement of a futureintent to perform that act is admissible as proof of the declarant's intent on that issue and asinferential proof that the declarant carried out [or attempted to carry out] his intent" (id. at91; see Mutual Life Ins. Co. v Hillmon, 145 US 285 [1892]; People v James, 93NY2d 620 [1999]; People v Kimes,37 AD3d 1, 10 [2006]; People v D'Arton, 289 AD2d 711, 712-713 [2001];People v Malizia, 92 AD2d 154, 159 [1983], affd 62 NY2d 755 [1984]; seealso Jerome Prince, Richardson on Evidence § 8-612 at 647 [Farrell 11th ed1995]; Fed Rules Evid rule 803 [3]). Here, the defendant's intention at the time of arrest was themost significant issue in the case. Armstrong's proposed testimony about the defendant'spre-arrest statement of his future intent to surrender the gun to the precinct would be admissibleas evidence of the defendant's intent at the time of arrest, and as inferential proof that thedefendant was in the process of carrying out his intent when he was arrested.
As argued by the defendant, the issue of whether he could introduce evidence of a pre-arreststatement that was consistent with his statement at the time of his arrest to rebut the People'scharge that his statement at the time of his arrest was a fabrication raises a question of firstimpression. Since Armstrong's proposed testimony about the defendant's statements to herregarding his intent to surrender the gun would be admissible under the state of mind exceptionto the hearsay rule, I would not reach this issue of first impression. In any event, I disagree withthe conclusion of my colleagues in the majority.
As noted by the majority, the use of a prior consistent statement to rehabilitate the credibilityof a testifying witness has no application in this case because the defendant did not testify.However, the underlying rationale for the common-law rule which allows the use of a priorconsistent statement to rehabilitate the credibility of a testifying witness whose testimony isassailed as a recent fabrication should apply in this situation.
"A witness' trial testimony ordinarily may not be bolstered with pretrial statements"(People v McDaniel, 81 NY2d 10, 16 [1993]). A recognized exception to the prohibitionagainst such bolstering "permits evidence of prior consistent statements when the witness'testimony is assailed [*15]as a recent fabrication" (People vMcClean, 69 NY2d 426, 428 [1987]). The exception to the rule against admission of priorconsistent statements is "rooted in fairness; it would be unjust to permit a party to suggest that awitness, as a result of interest, bias or influence, is fabricating a story without allowing theopponent to demonstrate that the witness had spoken similarly even before the alleged incentiveto falsify arose" (People v McDaniel, 81 NY2d at 18). In determining whether a party isassailing a witness's statement as a "recent fabrication," the word "recent" has not been limited totrial testimony, but encompasses statements made before the incentive to falsify arose (seePeople v Singer, 300 NY 120, 124 [1949]).
Here, the People introduced evidence that, when the defendant was arrested, he told thepolice officers that he was on his way to surrender the gun at the 120th Precinct station housepursuant to the Gun Buyback Program, and then assailed the defendant's statement as afabrication, i.e., a story made up by the defendant in order to avoid the consequences of beingfound in possession of a gun. Thus, the incentive to falsify arose at the time of arrest. Forpurposes of evidentiary rules, a criminal defendant who elects not to testify by invoking theprivilege against self-incrimination is considered to be an unavailable witness (see People vJames, 93 NY2d at 635). Under these circumstances, it would be unjust to permit the Peopleto suggest that the unavailable defendant, as a result of interest, bias, or influence, fabricated astory at the time of his arrest, without allowing the defendant to demonstrate that he had spokensimilarly before the incentive to falsify arose (see People v McDaniel, 81 NY2d at18).
The Supreme Court's error in prohibiting the proposed defense witnesses' testimony wasfurther compounded when, during summation, the prosecutor was permitted to comment, overthe defendant's objection, that the defendant's mother-in-law works at the 120th Precinct stationhouse, that the defendant "has a direct line to the precinct," and that he "d[id not] call hismother-in law." Even assuming that the court properly precluded Armstrong from testifyingabout her pre-arrest conversations with the defendant regarding his intention to surrender the gunat the 120th Precinct station house, it should not have permitted the prosecutor to tell the jury thatsuch a conversation never occurred.
Moreover, these errors became even more prejudicial to the defendant when the juryrequested a readback of Armstrong's testimony "regarding the turning in of the firearm if it wasever discussed between her and the defendant on the day of [the] arrest and prior to." Over thedefendant's repeated objection to the Supreme Court's evidentiary ruling limiting Armstrong'stestimony, the court accurately advised the jury that "[t]here is nothing in the record of the trial inregard to this subject."
Since these errors, in and of themselves, deprived the defendant of his fundamental rights topresent witnesses in his own defense and to a fair trial, I would reverse the judgment ofconviction and order a new trial (see People v Crimmins, 36 NY2d 230, 238 [1975])."The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never bepermitted to negate this right" (id. at 238).
As determined by the majority, the Supreme Court further erred in admitting into evidencetwo unredacted photographs, which were found on the defendant's cell phone, displaying whatappeared to be multiple handguns for which the defendant was not charged (see People v Morris, 21 NY3d588, 597 [2013]; People vAgina, 18 NY3d 600, 603 [2012]; People v Molineux, 168 NY 264 [1901]; People v Singleton, 139 AD3d208, 212 [2016]). Images of unrelated guns on the defendant's cell phone [*16]were not relevant to a determination of whether, at the time of thedefendant's arrest, he was in the process of surrendering the subject firearm to the police (seePeople v Singleton, 139 AD3d at 213). Rather, such evidence only tended to show thedefendant's propensity to possess firearms (see id.; People v Mercado, 120 AD2d619, 620 [1986]).
Notwithstanding the Supreme Court's limiting instruction to the jury with respect to theunredacted photographs, the impermissible use of these images became the focal point of aheated exchange during the defense summation. Defense counsel argued that the Peoplepresented no evidence as to whether the defendant's wife, or anyone else, had a permit for theunrelated guns shown in the photographs. Defense counsel's suggestion that the defendant's wifeor anyone else had a gun permit for those guns was improper. Nonetheless, instead of objectingto the improper comment, the prosecutor charged defense counsel with lying to the jury. Suchaccusation not only disparaged defense counsel, but also insinuated that the prosecutor hadinformation, withheld from the jury, that neither the defendant's wife, nor anyone else, had apermit for the unrelated guns.
As noted by the majority, the Supreme Court improvidently exercised its discretion inprohibiting the defendant from cross-examining Officer Muzikar regarding the underlying factsof one of the settled federal civil rights lawsuits filed against him (see People v Smith, 27 NY3d 652,662 [2016]; People v Enoe, 144AD3d 1052 [2016]). In that settled lawsuit, the complaint alleged that Officer Muzikar,along with two other officers, pulled the plaintiffs' vehicle over, ordered the plaintiffs out of thevehicle, and conducted an illegal search of the vehicle. The complaint further alleged that theofficers falsely claimed that one of the plaintiffs possessed a gravity knife. Since the instant casesimilarly involves a traffic stop and possession of a gravity knife, the allegations of misconductagainst Officer Muzikar in the settled civil suit were proper impeachment material (see People v Smith, 27 NY3d 652[2016]; People v Enoe, 144 AD3d1052 [2016]).
Since the defendant was deprived of the self-standing right to a fair trial, I need not reach theissue of whether the evidence was overwhelming for purposes of harmless error analysis. Evenso, I note that Officer Muzikar's testimony regarding the circumstances of the traffic stopmaterially differed from the testimony of the livery cab driver, and that all of the evidencepertaining to the manner in which the defendant possessed the gun and gravity knife came fromOfficer Muzikar.
Further, the Supreme Court erred in curtailing defense counsel from arguing on summationthat the defendant directed the livery cab driver to the cross streets of Bay Street and VictoryBoulevard as a waypoint to reaching the intended final destination of the 120th Precinct stationhouse. "It is, of course, the right of counsel during summation to comment upon every pertinentmatter of fact bearing upon the questions the jury have to decide" (People v Ashwal, 39NY2d 105, 109 [1976] [internal quotation marks omitted]). Counsel "is to be afforded 'the widestlatitude by way of comment, denunciation or appeal in advocating his [or her] cause' "(id. at 109, quoting Williams v Brooklyn El. R.R. Co., 126 NY 96, 103 [1891];see Braun v Ahmed, 127 AD2d 418, 421-422 [1987]).
Contrary to the Supreme Court's ruling, defense counsel's argument did not call for improperspeculation. The People introduced evidence that, at the time of arrest, the defendant told theofficers that he was on his way to the 120th Precinct station house. The People also introduced amap, which showed that, if the livery cab were to have turned left from Victory Boulevard ontoBay Street, it would be traveling in the most direct route to the precinct station house. Thus, onereasonable inference that may be drawn from the fact that the defendant told the livery cab driverto [*17]go to one location, i.e., the cross streets of Bay Street andVictory Boulevard, and then told the police officers that he was on his way to another location,i.e., the precinct station house, is that the defendant gave the livery cab driver the cross streets,instead of a specific address, as a means of gradually directing the driver to the final destinationof the precinct station house. Given all the evidence in the record, including the map, and thetestimonies of the livery cab driver and the arresting officer, the jury was free to accept or rejectthe inference that defense counsel requested that they draw.
In sum, the Supreme Court's rulings preemptively disabled the defendant from putting on adefense. The court precluded the defendant's key witness from corroborating his defense. Thedefendant was severely prejudiced by the admission into evidence of uncharged crimes. He wasnot permitted to use proper impeachment material for cross-examination of the arresting officer.On summation, he was not allowed to make fair comment on what was left of the evidencesupporting his defense.
Finally, I disagree with my colleagues' determination to affirm the sentence. "Anintermediate appellate court has broad, plenary power to modify a sentence that is unduly harshor severe under the circumstances, even though the sentence may be within the permissiblestatutory range" (People v Delgado, 80 NY2d 780, 783 [1992]; see CPL 470.15[6] [b]; People v Thompson, 60 NY2d 513, 519 [1983]; People v Kordish, 140 AD3d 981,982 [2016]). "Our sentencing review power 'may be exercised, if the interest of justice warrants,without deference to the sentencing court' " (People v Kordish, 140 AD3d at 982[emphasis omitted], quoting People v Delgado, 80 NY2d at 783; see People v Diaz, 146 AD3d 803,805 [2017]). "In considering whether a sentence is unduly harsh or severe under thecircumstances, we exercise our discretion giving consideration to, 'among other things, the crimecharged, the particular circumstances of the individual before the court and the purpose of a penalsanction, i.e., societal protection, rehabilitation, and deterrence' " (People vKordish, 140 AD3d at 982-983, quoting People v Farrar, 52 NY2d 302, 305 [1981];see Penal Law § 1.05; People v McConnell, 49 NY2d 340, 346[1980]; People v Diaz, 146 AD3d at 805-806). "There is no place in the scheme forpunishment for its own sake, the product simply of vengeance or retribution" (People vOliver, 1 NY2d 152, 160 [1956]; see Penal Law § 1.05; People vFarrar, 52 NY2d at 305; People v McConnell, 49 NY2d at 346).
Here, the imposition of a five-year determinate term of imprisonment for criminal possessionof a weapon in the second degree was unduly harsh and severe. At the time of sentencing, thedefendant was a 34-year-old homeowner who resided with his wife in Staten Island, had beengainfully employed as a security professional and assigned to a prominent Manhattan buildingover an 11-year career, and had no criminal record. Although he did not have a carry permit for agun, the police department had granted him a premises license.
Contrary to the determination of my colleagues, the defendant's failure to express remorsedoes not justify a five-year sentence given that (1) the defendant readily admitted at the time ofhis arrest that he possessed the subject gun; (2) the subject gun was not used in the commissionof any other crime; (3) there was no victim harmed as result of the defendant's alleged criminalact; (4) the defendant lacked any criminal record; and (5) the defendant maintained his innocenceand appealed his conviction. I do not see how the principal objectives of societal protection,rehabilitation, and deterrence are served by the punishment imposed by the Supreme Court asaffirmed by this Court (see People v Farrar, 52 NY2d at 305; People v Oliver, 1NY2d at 160).
[*18] Accordingly, I respectfullydissent, and vote to reverse the judgment and order a new trial on the ground that the defendantwas deprived of a fair trial.