| People v Wilson |
| 2018 NY Slip Op 05344 [163 AD3d 881] |
| July 18, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Wilson, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Nancy Fitzpatrick Talcott, Deborah E. Wassel, and Ayelet Sela of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H.Margulis, J.), rendered August 12, 2015, convicting him of robbery in the first degree (twocounts) and robbery in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court deprived him of his right to present adefense by denying his requests to call a witness of his own choosing and to obtain access toanother potential witness is without merit. "The right to present evidence by witnesses of one'sown choosing is a fundamental ingredient of due process" (People v Morales, 125 AD2d605, 606 [1986] [internal quotation marks omitted]), and evidence aimed at establishing a motiveto fabricate is never collateral and may not be excluded upon that ground (see People vHoover, 298 AD2d 599 [2002]). However, where such evidence is too remote or speculative,a trial court may, in the exercise of discretion, exclude it (see People v Monroe, 30 AD3d 616, 618 [2006]; People v Buonincontri, 18 AD3d569, 570 [2005], affd 6 NY3d 726 [2005]; People v Hoover, 298 AD2d at599). Here, the court providently exercised its discretion in denying the defendant's requests (see People v Vankenie, 52 AD3d849, 850 [2008]; People vSalas, 23 AD3d 414, 414 [2005]; People v Peterson, 200 AD2d 450, 450[1994]).
The defendant's contention that the prosecutor's summation remarks deprived him of a fairtrial because they contained misstatements of law, denigrated the defense, and improperly [*2]appealed to the jury's sympathies is unpreserved for appellatereview (see CPL 470.05 [2]). The defendant's challenge to the prosecutor's allegedburden-shifting summation comments, raised in the defendant's belated motion for a mistrial, isalso unpreserved for appellate review (see People v Rodney, 96 AD3d 880, 880 [2012]; People vLaguer, 235 AD2d 495, 495 [1997]). In any event, most of these and the other challengedsummation remarks were within the broad bounds of permissible rhetorical comment, a fairresponse to the defendant's summation, or fair comment on the evidence and the reasonableinferences to be drawn therefrom (see People v Halm, 81 NY2d 819, 821 [1993]; People v Negron, 150 AD3d 764,765 [2017]; People v Williams, 232 AD2d 669, 669 [1996]; People v Williams,144 AD2d 403, 403 [1988]). To the extent that any remaining challenged remarks wereimproper, they were not so egregious as to have deprived the defendant of a fair trial (see People v Coleman, 148 AD3d717, 718 [2017]; People vWilliams, 123 AD3d 1152, 1152 [2014], affd 29 NY3d 84 [2017]; People v Garcia-Villegas, 78 AD3d727, 728 [2010]).
The defendant's contention that he was deprived of a fair trial due to improper remarks madeby the Supreme Court to prospective jurors during voir dire is unpreserved for appellate review(see CPL 470.05 [2]; People vProkop, 155 AD3d 975, 976 [2017]; People v Mason, 132 AD3d 777, 779 [2015]). Contrary to thedefendant's contention, the court's conduct did not constitute a mode of proceedings errorexempting him from the rules of preservation (see People v Brown, 7 NY3d 880, 881 [2006]; People vProkop, 155 AD3d at 976; People v Mason, 132 AD3d at 779; People v Cunningham, 119 AD3d601, 601-602 [2014]). In any event, while we strongly disapprove of the court's conduct inmaking these inappropriate remarks, under the circumstances of this case, reversal is notwarranted (see People v Prokop, 155 AD3d at 976; People v Porter, 153 AD3d 857, 858 [2017]; People v Gomez, 153 AD3d 724,725 [2017]; People v Dudley, 151AD3d 878, 879 [2017]; People vSutton, 151 AD3d 763, 766 [2017]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Chambers, J.P., Cohen, Duffy and Connolly, JJ., concur.