People v. Lindsay

Decision Date19 August 2015
Docket Number2010-09347
Citation131 A.D.3d 625,16 N.Y.S.3d 566,2015 N.Y. Slip Op. 06605
PartiesThe PEOPLE, etc., respondent, v. George A. LINDSAY, appellant.
CourtNew York Supreme Court — Appellate Division

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

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and John F. McGoldrick of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered September 15, 2010, convicting him of assault in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court improperly denied his request for a transcript of his alibi witness's grand jury testimony, before the witness took the stand at trial, for the purpose of preventing the prosecutor's anticipated efforts to impeach the witness at trial through the use of that grand jury testimony. However, the defendant failed to preserve this contention for appellate review, as he did not raise that specific basis for his request in the Supreme Court (see CPL 470.05[2] ; People v. Ortiz, 250 A.D.2d 372, 374, 672 N.Y.S.2d 327 ). In any event, the Supreme Court properly denied the defendant's request, since it was made prior to the testimony and the attempted impeachment of the alibi witness with her grand jury testimony. The defense was not entitled to the transcript until after the prosecutor used it to impeach the witness on cross-examination (see People v. Parchment, 92 A.D.3d 699, 700, 938 N.Y.S.2d 174 ; People v. Gladden, 72 A.D.2d 568, 569, 420 N.Y.S.2d 739 ; see also People v. Hill, 285 A.D.2d 474, 475, 727 N.Y.S.2d 892 ), and the defendant did not request the transcript either during or after the cross-examination of the witness.

Contrary to the defendant's contention, the People laid a proper foundation prior to questioning his alibi witness with respect to her delay in coming forward with exculpatory evidence (see People v. Dawson, 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771 ; People v. Joseph, 97 A.D.3d 838, 839, 948 N.Y.S.2d 685 ; People v. Felipe, 66 A.D.3d 919, 887 N.Y.S.2d 635 ; People v. Wright, 62 A.D.3d 916, 878 N.Y.S.2d 788 ; People v. Stokes, 282 A.D.2d 553, 553, 722 N.Y.S.2d 753 ), and there was no representation that she was explicitly instructed to remain silent by the defendant's previous attorney (see People v. Dawson, 50 N.Y.2d at 322, 428 N.Y.S.2d 914, 406 N.E.2d 771 ; People v. Felipe, 66 A.D.3d at 920, 887 N.Y.S.2d 635 ). To the extent the defendant claims that there was no delay by the witness in coming forward, defense counsel was free to elicit testimony in support of that assertion during redirect examination of the witness (see People v. Jackson, 45 A.D.3d 433, 434, 846 N.Y.S.2d 126 ; People v. Patterson, 137 A.D.2d 632, 524 N.Y.S.2d 515 ).

Additionally, the Supreme Court providently exercised its discretion in permitting the impeachment of the alibi witness with her omission from her grand jury testimony of a critical fact to which she testified at trial, since it would have been unnatural to omit that fact from the exculpatory narrative she provided to the grand jury (see People v. Bruno, 34 A.D.3d 220, 220, 823 N.Y.S.2d 144 ; People v. Montalvo, 285 A.D.2d 384, 385, 728 N.Y.S.2d 448 ; see also People v. Greene, 110 A.D.3d 827, 828–829, 973 N.Y.S.2d 239 ; cf. People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461 ).

Contrary to the defendant's contention, the evidence of serious physical injury adduced at trial was legally sufficient to support his conviction of assault in the first degree. The prosecution presented the complainant's testimony and medical records describing the nature and extent of the complainant's gunshot wounds, the medical treatment he received, his lengthy and painful convalescence, and the ongoing adverse effects he...

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