People v. Frazier

• Decision Date: 08 November 1996
• Citation: 649 N.Y.S.2d 542,233 A.D.2d 896
• Parties: PEOPLE of the State of New York, Respondent, v. Joseph FRAZIER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 542

649 N.Y.S.2d 542

233 A.D.2d 896

PEOPLE of the State of New York, Respondent, v. Joseph FRAZIER, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 8, 1996.

Robert Boreanaz, Buffalo, for appellant.

Kevin M. Dillon by Donna Milling, Buffalo, for respondent.

Before GREEN, J.P., and LAWTON, WESLEY and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of three counts of burglary in the first degree (Penal Law § 140.30[2], [3] ). He contends that Supreme Court abused its discretion in precluding the testimony of his expert witness regarding the effect of cocaine on the accuracy of the complainant's testimony. We disagree. Defendant failed to make an offer of proof that the expert, who had not examined the complainant, would testify that the complainant had ingested cocaine on the night of the burglary, or that she had a history of drug abuse that would have impaired her ability to perceive and recall the events at issue. Because defendant's offer of proof established only that the expert would testify about the general effects of cocaine and respond to some hypothetical questions regarding the effect of cocaine on a user, defendant failed to show the relevance of the proposed testimony (see, People v. Billups, 132 A.D.2d 612, 612-613, 518 N.Y.S.2d 9, lv denied 70 N.Y.2d 873, 523 N.Y.S.2d 500, 518 N.E.2d 11, 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d 1082; see also, People v. Baxter, 177 A.D.2d 1003, 578 N.Y.S.2d 23, lv denied 79 N.Y.2d 943, 583 N.Y.S.2d 197, 592 N.E.2d 805).

Neither did the court abuse its discretion in limiting the scope of defendant's cross-examination of the complainant regarding her history of drug dealing and drug usage and the possible connection between the burglary and the recent drug-related homicide of her husband. "The extent to which disparaging questions, not relevant to the issue, but bearing on the credibility of a witness, may be put upon cross-examination is discretionary with the Trial Judge, whose rulings are not subject to review unless it clearly appears that the discretion has been abused" (Prince, Richardson on Evidence § 6-304, at 381 [Farrell 11th ed]; see, People v. Greer, 42 N.Y.2d 170, 176, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Duffy, 36 N.Y.2d 258, 262-263, 367 N.Y.S.2d 236, 326 N.E.2d 804, mot to amend remittitur granted 36 N.Y.2d 857, 370 N.Y.S.2d 919, 331 N.E.2d 695, cert denied 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88; People v. Tyes, 175 A.D.2d 624, 572 N.Y.S.2d 603, lv denied 79 N.Y.2d 865, 580 N.Y.S.2d 737, 588 N.E.2d 772).

We reject the further contention that defendant was deprived of a fair trial by prosecutorial misconduct. There was no pervasive pattern of misconduct so egregious as to deprive defendant of a fair trial (see, People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Roopchand, 107 A.D.2d 35, 485 N.Y.S.2d 332, affd 65 N.Y.2d 837, 493 N.Y.S.2d 129, 482 N.E.2d 924; People v. Plant, 138 A.D.2d 968, 526 N.Y.S.2d 300, lv denied 71 N.Y.2d 1031, 530 N.Y.S.2d 566, 526 N.E.2d 59). Nor did the People's failure to turn over Rosario material deprive defendant of a fair trial. The People could not produce the original notes of a police officer regarding his investigation of the burglary because they were lost or destroyed after being typed. If the People fail to exercise due care to preserve Rosario material and defendant is prejudiced thereby, "the court must impose an appropriate sanction" (People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134). The court did not abuse its discretion in giving an adverse inference charge as the sanction. There is no indication that the notes were lost or destroyed by anything other than inadvertence, and any prejudice to defendant was minimal in light of his use of the typed notes in cross-examining the officer (see, People v. Banch, 80 N.Y.2d 610, 616-617, 593 N.Y.S.2d 491, 608 N.E.2d 1069; People v. Martinez, supra, at 940, 528 N.Y.S.2d 813, 524 N.E.2d 134). With respect to records in the possession of the Federal Bureau of Investigation, the People are not responsible for producing such records where, as here, they never possessed them, and "neither [the People] nor the courts of this State could gain access to [them] without the consent of the appropriate Federal agency" (People v. Guido, 186 A.D.2d 757, 758-759, 588 N.Y.S.2d 908, citing People v. Rodriguez, 155 A.D.2d 257, 259, 546 N.Y.S.2d 861, lv denied 75 N.Y.2d 923, 555 N.Y.S.2d 42, 554 N.E.2d 79; see, People v. Ortiz, 209 A.D.2d 332, 334, 619 N.Y.S.2d 12, lv denied 86 N.Y.2d 739, 631 N.Y.S.2d 619, 655 N.E.2d 716; see also, People v. Flynn, 79 N.Y.2d 879, 882, 581 N.Y.S.2d 160, 589 N.E.2d 383).

The contention of defendant that he was prejudiced by the failure of the People to turn over Federal Drug Enforcement Agency (DEA) files in their possession is also without...