People v. Damon

• Decision Date: 09 November 2010
• Citation: 78 A.D.3d 860,911 N.Y.S.2d 127
• Parties: The PEOPLE, etc., respondent, v. Clifford DAMON, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 127

78 A.D.3d 860

The PEOPLE, etc., respondent,

v.Clifford DAMON, appellant.

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

Nov. 9, 2010.

Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered June 10, 2008, convicting him of murder in the second degree and attempted murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he validly waived his right to counsel, after an extensive inquiry by the Supreme Court that established his ability to represent himself, and emphasized the dangers and disadvantages of proceeding without counsel ( see People v. Providence, 2 N.Y.3d 579, 580-581, 780 N.Y.S.2d 552, 813 N.E.2d 632; People v. Smith, 92 N.Y.2d 516, 683 N.Y.S.2d 164, 705 N.E.2d 1205).

The defendant's contention that hearsay testimony was improperly admitted against him is unpreserved for appellate review ( see CPL 470.05 [2] ). In any event, some of that testimony was admissible pursuant to the state of mind exception to the hearsay rule ( see People v. Rose, 41 A.D.3d 742, 743, 840 N.Y.S.2d 363). To the extent the admission of hearsay testimony was erroneous, the error was harmless, since there was overwhelming evidence of the defendant's guilt, and there is no reasonable possibility that the hearsay evidence might have contributed to the defendant's conviction ( see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant did not preserve for appellate review his contention that his cross-examination by the prosecutor deprived him of a fair trial, because the questions forced the defendant to characterize the prosecution's witnesses as liars ( see CPL 470.05[2] ). In any event, the defendant's contention is without merit. The defendant denied the occurrence of events and his involvement in those events as testified to by the People's witnesses. The defendant also volunteered that, in his view, the police witnesses lied. The defendant therefore created a "credibility contest" ( People v. Overlee, 236 A.D.2d 133, 140, 666 N.Y.S.2d 572), and consistent with the prosecutor's duty to conduct a vigorous cross-examination, he was entitled to ask the defendant if the prosecution's witnesses were lying ( id. at 138-139, 666 N.Y.S.2d 572). Further, any error arising from the prosecutor's cross-examination of the defendant was harmless, as there was overwhelming evidence of the defendant's guilt, and there was no significant probability that any impropriety in the prosecutor'scross-examination of the defendant affected the verdict ( see People v. Crimmins, 36 N.Y.2d at 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's contention that certain remarks made by the prosecutor during summation were improper and deprived him of a fair trial is unpreserved for appellate review, as the defendant either did not object to the comments ( see People v. Anderson, 24 A.D.3d 460, 805 N.Y.S.2d 655;People v. Williams, 303 A.D.2d 772, 757 N.Y.S.2d 445), made only general objections ( see People v. Franklin, 64 A.D.3d 614, 615, 883 N.Y.S.2d...