People v. Gandy
| Decision Date | 12 July 1989 |
| Citation | 152 A.D.2d 909,543 N.Y.S.2d 817 |
| Parties | PEOPLE of the State of New York, Respondent, v. Ann GANDY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Nowak by Scott Garretson, Rochester, for appellant.
Howard R. Relin by Robert Mastrocola, Rochester, for respondent.
Before DILLION, P.J., and DOERR, BOOMER, BALIO and DAVIS, JJ.
The court did not err in admitting the tape and a transcript of a 911 call placed by the victim Cynthia Little during the incident. After the tape was played and the transcript was submitted to the jury, the court cautioned the jury that the transcript was merely an aid, that they were not bound to accept it, and that they must decide what was said on the tape. This was in all respects proper (see, People v. Kuss, 81 A.D.2d 427, 430, 442 N.Y.S.2d 313). The determination of whether to admit a tape recording is left to the discretion of the Trial Judge (see, People v. Lubow, 29 N.Y.2d 58, 68, 323 N.Y.S.2d 829, 272 N.E.2d 331; People v. Warner, 126 A.D.2d 788, 510 N.Y.S.2d 292, lv. denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106). We find no abuse of discretion in this case.
The court erred in permitting the People to cross-examine defendant's character witnesses concerning whether their opinions of defendant's reputation would change if they knew that defendant had committed the crimes at issue. This type of questioning is improper since it assumes the fact of defendant's guilt and tends to usurp the jury's function to determine defendant's guilt or innocence (see, People v. Pryor, 70 A.D.2d 805, 806, 417 N.Y.S.2d 490; People v. Lopez, 67 A.D.2d 624, 411 N.Y.S.2d 627, cert. denied 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34). The People concede the impropriety of such questioning, but argue that the error was harmless. We agree. In view of the jury's verdict acquitting defendant of one homicide charge with regard to Edward Gandy and also acquitting her of intentionally killing Cynthia Little, it is apparent that the jury credited defendant's testimony. Defendant has demonstrated no prejudice resulting from the improper cross-examination by the prosecutor.
We have reviewed defendant's remaining arguments and find them to be without merit.
Judgment unanimously affirmed.
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