People v. Alcarez

• Citation: 2016 N.Y. Slip Op. 05590,141 A.D.3d 943,36 N.Y.S.3d 284
• Parties: The PEOPLE of the State of New York, Respondent, v. Miguel ALCAREZ, Appellant.
• Decision Date: 21 July 2016
• Court: New York Supreme Court Appellate Division

141 A.D.3d 943
36 N.Y.S.3d 284
2016 N.Y. Slip Op. 05590

The PEOPLE of the State of New York, Respondent,
v.
Miguel ALCAREZ, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 21, 2016.

36 N.Y.S.3d 285

Robert W. Linville, Public Defender, Hudson (Michael C. Howard of counsel), for appellant.

Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.

Before PETERS, P.J., LAHTINEN, GARRY, CLARK and MULVEY, JJ.

MULVEY, J.

141 A.D.3d 943

Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered January 15, 2014, upon a verdict convicting defendant of the crimes 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 of Desiree Graziano. Defendant and four others, wearing bandanas across their faces and purportedly wielding a knife and a chisel, entered the residence—where Graziano and three others were present—demanding to know the location of the drugs and money secreted therein. When police arrived, the perpetrators fled in a vehicle, which left the road and ended up in a pond. Defendant was arrested by police as he emerged wet from the pond. He was charged with—and ultimately convicted by a jury of—burglary in the

141 A.D.3d 944

first degree and robbery in the first degree. He was sentenced to concurrent prison terms of 12 years, together with postrelease supervision, and now appeals.

Defendant argues that County Court unduly restricted his right to cross-examine witnesses regarding drug-related activities by Graziano. A criminal defendant is entitled to conduct “appropriate cross-examination designed to show a prototypical form of bias on the part of the witness” (Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ; see People v. Hudy, 73 N.Y.2d 40, 56–57, 538 N.Y.S.2d 197, 535 N.E.2d 250 [1988] ; People v. Alnutt, 101 A.D.3d 1461, 1465, 957 N.Y.S.2d 412 [2012], lv. denied 21 N.Y.3d 941, 968 N.Y.S.2d 3, 990 N.E.2d 137 [2013], cert. denied 571 U.S. ––––, 134 S.Ct. 1035, 188 L.Ed.2d 129 [2014] ). Since, at the time of trial, Graziano still faced potential drug charges flowing from evidence found by police at the crime scene, she had a motive to attempt to tailor her testimony in a manner to curry favor with the prosecution (see Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 [1931] ; People v. McLeod, 122 A.D.3d 16, 19–20, 991 N.Y.S.2d 418 [2014] ). However, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish” (Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 [1985] ; accord People v. Smith, 27 N.Y.3d 652, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2016 N.Y. Slip Op. 05061, *2, 2016 WL 3494644 [2016] ; see People v. Wilson, 100 A.D.3d 1045, 1047, 952 N.Y.S.2d 837 [2012], lv. denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013] ). The trial court retains discretion “to restrict cross-examination ‘based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant’ ” (Corby v. Artus, 699 F.3d 159, 166 [2d Cir.2012], cert. denied –

36 N.Y.S.3d 286

–– U.S. ––––, 133 S.Ct. 1287, 185 L.Ed.2d 218 [2013], quoting Delaware v. Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431 ; see People v. McLeod, 122 A.D.3d at 19, 991 N.Y.S.2d 418 ; People v. DeFreitas, 116 A.D.3d 1078, 1081–1082, 984 N.Y.S.2d 423 [2014], lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ; People v. Mestres, 41 A.D.3d 618, 618, 838 N.Y.S.2d 164 [2007], lv. denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ).

During the cross-examination of one police officer, defense counsel elicited from the officer that there had been prior complaints of drug-related activity at the subject residence and that those earlier incidents involved Graziano. Several witnesses testified that the perpetrators were seeking drugs when they entered the premises. County Court, among other things, permitted defense counsel to question Graziano about her drug use on 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 exposure to potential criminal charges for defendant to urge the jury that she was biased or tailoring her testimony to

141 A.D.3d 945

obtain leniency from potential prosecution and to otherwise attack her credibility, including the veracity of her testimony that the perpetrators were armed with a chisel and a knife.

Although the restrictive parameters placed on such proof by County Court creates a close issue, allowing a free-wheeling general inquiry into all of Graziano's alleged drug activities would have produced confusion regarding the issues pertinent to the trial, resulting in a mini-trial on Graziano's unrelated and marginally relevant personal drug problems. Defendant's efforts to pursue this broad line of proof about Graziano's history with drugs, particularly with extrinsic evidence, was sliding rapidly toward a trial on a collateral matter where the trial court has wide discretion regarding the extent permitted of such proof (see e.g. People v. Powell, 27 N.Y.3d 523, 527–528, 35 N.Y.S.3d 675, 55 N.E.3d 435 [2016] ; People v. Allen, 24 N.Y.3d 441, 450, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ). In any event, Graziano was one of several witnesses whose testimony established the elements of the crimes and, in light of the overwhelming proof of defendant's involvement and guilt, we would find any error by County Court harmless beyond a reasonable doubt (see People v. Spencer, 20 N.Y.3d 954, 956–957, 959 N.Y.S.2d 112, 982 N.E.2d 1245 [2012] ; People v. Hughes, 111 A.D.3d 1170, 1174, 975 N.Y.S.2d 507 [2013], lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] ).

PETERS, P.J., LAHTINEN and GARRY, JJ., concur.

CLARK, J. (concurring).

I respectfully disagree with the majority's conclusion that County Court properly restricted the scope of defendant's cross-examination of certain witnesses, but agree that, in this case, the error was harmless.

While the trial court has broad discretion to limit cross-examination into collateral matters aimed at impeaching the credibility of a witness (see People v. Wilson, 100 A.D.3d 1045, 1047, 952 N.Y.S.2d 837 [2012], lv. denied 22 N.Y.3d 998, 981 N.Y.S.2d 4, 3 N.E.3d 1172 [2013] ; People v. Comfort, 60 A.D.3d 1298, 1300, 875 N.Y.S.2d 672 [2009], lv. denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086 [2009] ; People v. Love, 307 A.D.2d 528, 531, 762 N.Y.S.2d 162 [2003], lv. denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 [2003] ), “ ‘extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground’ ” (

36 N.Y.S.3d 287

People v. Alnutt, 101 A.D.3d 1461, 1465, 957 N.Y.S.2d 412 [2012], lv. denied 21 N.Y.3d 941, 968 N.Y.S.2d 3, 990 N.E.2d 137 [2013], cert. denied 571 U.S. ––––, 134 S.Ct. 1035, 188 L.Ed.2d 129 [2014], quoting People v. Hudy, 73 N.Y.2d 40, 56, 538 N.Y.S.2d 197, 535 N.E.2d 250 [1988], abrogated on other grounds by Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 [2000] ; accord People v. Spencer, 20 N.Y.3d 954, 956, 959 N.Y.S.2d 112, 982 N.E.2d 1245 [2012] ). Evidence of a motive to fabricate may be excluded if it is too remote or speculative or lacks a good-faith basis (see People v. Brown, 128 A.D.3d 1183, 1187, 9 N.Y.S.3d 434 [2015], lv. denied 27 N.Y.3d 993, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. DeFreitas, 116 A.D.3d 1078, 1082, 984 N.Y.S.2d 423 [2014], lv. denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ; People v. Poole, 55 A.D.3d 1349, 1350, 866 N.Y.S.2d 468 [200...