People v. Callender

• Decision Date: 10 December 2014
• Docket Number: 2012-03721
• Parties: The PEOPLE, etc., respondent, v. Ashante CALLENDER, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 840
998 N.Y.S.2d 448
2014 N.Y. Slip Op. 08657

The PEOPLE, etc., respondent
v.
Ashante CALLENDER, appellant.

2012-03721

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

Dec. 10, 2014.

998 N.Y.S.2d 449

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

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jennifer Hagan, and Christine DiSalvo of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

Opinion

123 A.D.3d 840

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.), rendered April 4, 2012, convicting him of criminal sale of a controlled substance in the second degree and criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

As the defendant correctly contends, the prosecutor improperly cross-examined a defense witness as to the content of prior conversations between himself and that witness (see People v. Paperno, 54 N.Y.2d 294, 300–301, 445 N.Y.S.2d 119, 429 N.E.2d 797 ; People v. Rivera, 27 A.D.3d 491, 810 N.Y.S.2d 333, 334 ; People v. Watts, 3 A.D.3d 425, 770 N.Y.S.2d 716 ; People v. Mangine, 73 A.D.2d 816, 424 N.Y.S.2d 75 ). Nevertheless, reversal on this basis is not warranted. In reviewing claims of prosecutorial misconduct, the court will consider the severity and frequency of the conduct, whether the court took appropriate action, and whether the result would have been the same absent the conduct (see People v. Wright, 88 A.D.3d 1154, 1158, 931 N.Y.S.2d 727 ).

Here, the court struck the questions and answers regarding the content of the conversations between the prosecutor and the witness, and instructed the jurors before deliberations that they were to dismiss from their minds any testimony that had been stricken and any...