People v. Caldwell

• Decision Date: 19 March 2014
• Citation: 982 N.Y.S.2d 356,115 A.D.3d 870,2014 N.Y. Slip Op. 01765
• Parties: The PEOPLE, etc., respondent, v. Shea CALDWELL, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 870

982 N.Y.S.2d 356

2014 N.Y. Slip Op. 01765

The PEOPLE, etc., respondent,

v.Shea CALDWELL, appellant.

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

March 19, 2014.

Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Laura T. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered July 11, 2011, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court's curtailment of his cross-examination of prosecution witnesses deprived him of his right to present a defense is unpreserved for appellate review, as the defendant failed to object to the court's instructions limiting the cross-examinations ( see People v. Bernardez, 63 A.D.3d 1174, 881 N.Y.S.2d 316, citing People v. George, 67 N.Y.2d 817, 501 N.Y.S.2d 639, 492 N.E.2d 767). In any event, the court's instructions were proper and within its discretion, as the defendant's questions were not relevant, were only marginally relevant, or threatened to mislead the jury ( see People v. Greene, 110 A.D.3d 827, 973 N.Y.S.2d 239;People v. Castellanos, 65 A.D.3d 555, 556, 884 N.Y.S.2d 126;People v. Goodman, 280 A.D.2d 611, 720 N.Y.S.2d 534;People v. Heung K. Sul, 234 A.D.2d 563, 652 N.Y.S.2d 57;People v. Ashner, 190 A.D.2d 238, 597 N.Y.S.2d 975).

The defendant's contention that the prosecutor committed prosecutorial misconduct in his summation, and therefore deprived him of a fair trial, is not preserved for appellate review, as the defendant either did not object to the comments, or did not object to the Supreme Court's rulings or request additional curative instructions ( see CPL 470.05[2]; People v. Wright, 62 A.D.3d 916, 878 N.Y.S.2d 788;People v. Comer, 73 N.Y.2d 955, 540 N.Y.S.2d 997, 538 N.E.2d 349;People v. Tardbania, 72 N.Y.2d 852, 532 N.Y.S.2d 354, 528 N.E.2d 507). In any event, the defendant's contention is without merit. A prosecutor has “broad latitude during summation, particularly when responding to the defense counsel's summation” ( People v. Cariola, 276 A.D.2d 800, 800, 715 N.Y.S.2d 162, citing People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;see People v. Rhodes, 11 A.D.3d 487, 782 N.Y.S.2d 788). In this case, all but one of the prosecutor's statements were either fair comment on the evidence presented, fair response to the defendant's summation, or permissible rhetorical comment ( see People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279;People v. Marcus, 112 A.D.3d 652, 975 N.Y.S.2d 771;People v. Williams, 52 A.D.3d 851, 861 N.Y.S.2d 713;People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614;People v. Brown, 233 A.D.2d 458, 650 N.Y.S.2d 258). Any error in allowing the one improper statement was...