People v. Andrews

• Decision Date: 08 June 1987
• Parties: The PEOPLE, etc., Respondent, v. Maurice ANDREWS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 496

516 N.Y.S.2d 496

131 A.D.2d 580

The PEOPLE, etc., Respondent, v. Maurice ANDREWS, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 8, 1987.

Philip L. Weinstein, New York City (Dina L. Wilcox, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before MANGANO, J.P., and BROWN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O'Dwyer, J.), rendered November 29, 1985, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Although the defendant contends that his guilt was not proven beyond a reasonable doubt based upon the seeming inconsistencies in the testimony of the police witnesses, that testimony presented questions of credibility properly resolved by the jury in favor of the People. Contrary to the defendant's assertions, the testimony of the complainant police officer was not incredible as a matter of law (see, e.g., People v. Coaye, 110 A.D.2d 904, 488 N.Y.S.2d 735, mod. on other grounds 68 N.Y.2d 857, 508 N.Y.S.2d 410, 501 N.E.2d 18), and, upon the exercise of our factual review power, the evidence in the record established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15[5]; see, People v. Gebert, 118 A.D.2d 799, 500 N.Y.S.2d 299, lv. denied 67 N.Y.2d 943, 502 N.Y.S.2d 1035, 494 N.E.2d 120).

We also find that the trial court properly ruled that the defense attorney, through her cross-examination of the police witnesses, created the inference of recent fabrication concerni the assault charges against the defendant. On that basis, it properly admitted evidence of prior consistent statements made by these witnesses at a time when there was no motive to falsify (see, People v. Davis, 44 N.Y.2d 269, 405 N.Y.S.2d 428, 376 N.E.2d 901).

We further find no merit to the defendant's claim that the trial court unfairly curtailed defense counsel's summation by sustaining numerous objections raised by the prosecutrix as to many of her remarks. Defense counsel exceeded the bounds of fair comment by, for example, referring to matters not in evidence and calling upon the jury to draw conclusions which were not fairly inferable from the evidence (see, People v. Ashwal, 39 N.Y.2d 105, 109-110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

We have...