| People v Zaimi |
| 2018 NY Slip Op 08702 [167 AD3d 954] |
| December 19, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lani Zaimi, Appellant. |
Daniel L. Bibb, LLC, New York, NY, for appellant.
Robert Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Anne E.Minihan, J.), rendered September 6, 2016, convicting him of forcible touching, upon a juryverdict, and imposing sentence. By decision and order on motion dated February 27, 2017, thisCourt, inter alia, granted the defendant's motion to continue the stay of execution of the judgmentpending hearing and determination of the appeal.
Ordered that the judgment is affirmed, and the matter is remitted to the County Court,Putnam County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's contention that the exclusion of his former attorney from the courtroomduring trial testimony infringed his right to a public trial is without merit. The County Courtexcluded the defendant's former attorney pursuant to a witness exclusion order upon theprosecutor's representation that the People would be calling that individual as a witness at thetrial. Although the court subsequently precluded the witness from testifying, that did not impugnthe prosecutor's good faith (see People vMarsalis, 3 AD3d 509, 510 [2004]; cf. People v Ortiz, 6 AD3d 731, 732 [2004]). Furthermore, theclosure was strictly limited to the witnesses that would be called at trial. Under the circumstancesof this case, we find no infringement of the defendant's right to a public trial (see People vJones, 96 NY2d 213, 217 [2001]; People v Thompson, 81 AD3d 670, 672 [2011], affd 22NY3d 687 [2014]; People vMarsalis, 3 AD3d 509, 510 [2004]; People v Nevarez, 245 AD2d 173[1997]).
Contrary to the defendant's contention, he was not deprived of a fair trial by a policedetective's testimony that the defendant had been the subject of previous investigations by thepolice department. While the challenged testimony was improper, the matter was immediatelyaddressed by the County Court, which struck the challenged testimony and provided the jury withcomprehensive curative instructions sufficient to dispel any prejudicial effect, rendering reversalunwarranted (see People v Murphy,151 AD3d 888, 889 [2017]; Peoplev Macaluso, 144 AD3d 947, 947-948 [2016]; People v Dubois, 116 AD3d 878, 878 [2014]). The defendant'scontention that he was prejudiced by testimony from other witnesses alluding to unrelatedcriminal investigations is without merit, as the testimony was innocuous and equivocal.
The defendant's contention that he was deprived of a fair trial by improper remarks made bythe prosecutor during his summation is unpreserved for appellate review (see People vTonge, 93 NY2d 838, 839 [1999]; People v Dunning, 148 AD3d 1047, 1048 [2017]; People v Spencer, 87 AD3d 751,753 [2011], affd 20 NY3d 954 [2012]). In any event, this contention is without merit,since the comments alleged to be prejudicial were fair response to the defendant's attacks on thecredibility of the People's complaining witness, permissible rhetorical comment, or do nototherwise warrant reversal (see People v Galloway, 54 NY2d 396, 401 [1981]; Peoplev Ashwal, 39 NY2d 105, 109 [1976]; People v Beer, 146 AD3d 895, 897 [2017]; People v Thomas, 143 AD3d1006, 1007 [2016]; People vRamrattan, 126 AD3d 1013, 1014-1015 [2015]).
We agree with the County Court's determination that certain text messages between thecomplainant and an assistant district attorney did not constitute Rosario material(see CPL 240.45 [1] [a]; People v Rosario, 9 NY2d 286 [1961]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Rivera, J.P., Dillon, Cohen and Iannacci, JJ., concur.