People v. Dizak

• Decision Date: 16 March 2012
• Citation: 93 A.D.3d 1182,940 N.Y.S.2d 408,2012 N.Y. Slip Op. 01907
• Parties: The PEOPLE of the State of New York, Respondent, v. Stuart J. DIZAK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01907
93 A.D.3d 1182
940 N.Y.S.2d 408

The PEOPLE of the State of New York, Respondent,
v.
Stuart J. DIZAK, Defendant–Appellant.

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

March 16, 2012.

[940 N.Y.S.2d 408]

Bernard H. Udell, Brooklyn, for Defendant–Appellant.

[940 N.Y.S.2d 409]

Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[93 A.D.3d 1183] Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of conspiracy in the second degree (Penal Law § 105.15) and criminal solicitation in the second degree (§ 100.10). We conclude at the outset, to the extent the People contend that the appeal must be dismissed because defendant failed to serve his notice of appeal in a timely manner, that contention lacks merit. Pursuant to CPL 460.10(1) (b), “[i]f the defendant is the appellant, he [or she] must, within [30 days after sentence is imposed], serve a copy of [the] notice of appeal upon the district attorney of the county embracing the criminal court in which the judgment ... being appealed was entered.” Any defect in service of the notice of appeal here, however, is not fatal. “[T]he People waived any objection to defendant's failure to serve the notice of appeal by responding to his appeal on the merits rather than filing a motion to dismiss the appeal at some earlier juncture ... The People, moreover, have failed to demonstrate any prejudice as a result of defendant's alleged failure to comply with CPL 460.10(1)(b)” ( People v. Sayles, 292 A.D.2d 641, 642, 739 N.Y.S.2d 475 n, lv. denied 98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235).

Turning to the merits, we reject defendant's contention that County Court erred in limiting his cross-examination of the second coconspirator to testify. We agree with defendant, however, that the court erred in limiting his cross-examination of the first coconspirator to testify. “[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” ( People v. Gross, 71 A.D.3d 1526, 1527, 896 N.Y.S.2d 557, lv. denied 15 N.Y.3d 774, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [internal quotation marks omitted] ). Although the court providently exercised its discretion by refusing to permit defendant to inquire with respect to that witness's youthful offender adjudication ( see People v. Smith, 90 A.D.3d 1565, 1566, 935 N.Y.S.2d 775; see generally People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 338 N.E.2d 619), it erred in limiting defendant's cross-examination concerning the circumstances underlying the youthful offender adjudication and that witness's disorderly conduct conviction ( see People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444; People v. Lucius, 289 A.D.2d 963, 964, 737 N.Y.S.2d 717, lv. denied 98 N.Y.2d 638, 744 N.Y.S.2d 767, 771 N.E.2d 840; see generally Gross, 71 A.D.3d at 1527, 896 N.Y.S.2d 557). “We ... conclude, however, that the error is harmless where, as here, ‘the witness['s] prior criminal history was extensively explored [93 A.D.3d 1184] on cross-examination[,] although not totally or definitively set forth as the defendant may have wished’ ... The record establishes that the court permitted defense counsel to impeach the witness with a litany of other prior bad acts, and thus we conclude that there is no reasonable possibility that the error might have contributed to defendant's conviction” ( Lucius, 289 A.D.2d at 964, 737 N.Y.S.2d 717; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787). We reject defendant's further contention that the People violated CPL 240.45 based on their failure to comply with their relevant disclosure obligations ( see People v. Griffin, 48 A.D.3d 894, 895, 851 N.Y.S.2d 718, lv. denied 10 N.Y.3d 959, 863 N.Y.S.2d 143, 893 N.E.2d 449).

[940 N.Y.S.2d 410]

Contrary to defendant's contention, the court's Molineux ruling was not an abuse of discretion ( see ...