People v. Lyon

• Decision Date: 01 October 2010
• Citation: 908 N.Y.S.2d 291,77 A.D.3d 1338
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian P. LYON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 291

77 A.D.3d 1338

The PEOPLE of the State of New York, Respondent,

v.Brian P. LYON, Defendant-Appellant.

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

Oct. 1, 2010.

Robert Tucker, Canandaigua, for Defendant-Appellant.

R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Respondent.

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, robbery in the third degree (Penal Law § 160.05). Defendant contends that County Court erred in allowing the prosecutor, on two occasions, to question defendant in violation of the court's Sandoval ruling. First, defendant contends that the court erred in allowing the prosecutor to cross-examine defendant with respect to his prior dealings with the arresting officer, thereby revealing details with respect to misdemeanor traffic convictions. Although we agree with defendant that the identification by the prosecutor of those prior convictions improperly exceeded the scope of the Sandoval ruling ( see People v. Beniquez, 215 A.D.2d 678, 679-680, 628 N.Y.S.2d 115), we conclude that the error is harmless ( see People v. Grant, 7 N.Y.3d 421, 426, 823 N.Y.S.2d 757, 857 N.E.2d 52). The proof of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error ( see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Towsley, 53 A.D.3d 1083, 1083-1084, 862 N.Y.S.2d 236, lv. denied 11 N.Y.3d 795, 866 N.Y.S.2d 621, 896 N.E.2d 107).

Second, defendant contends that the court erred in allowing the prosecutor, on re-cross-examination, to question defendant with respect to his entire criminal record. We reject that contention. Where, as here, a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense 'opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" ( People v. Fardan, 82 N.Y.2d 638, 646, 607 N.Y.S.2d 220, 628 N.E.2d 41; see People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293).

The contention of defendant that he was deprived of a fair trial based on prosecutorial misconduct on summation is not preserved for our review ( see CPL 470.05[2] ) and, in any event, is without merit. To the extent that the prosecutor vouched for the credibility of witnesses on summation, we conclude that such conduct, although improper, was not so egregious as to deny defendant a fair trial ( see People v. White, 291 A.D.2d 842, 843, 737 N.Y.S.2d 181, lv. denied 98 N.Y.2d 656, 745 N.Y.S.2d 515, 772 N.E.2d 618). The remaining instances of alleged prosecutorial misconduct on summation were " 'either a fair response to defense counsel's summation or fair comment on the evidence' " ( People v. Green, 60 A.D.3d 1320, 1322, 875 N.Y.S.2d 390, lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077). We reject the further contention of defendant that he was denied effective assistance of counsel. Defense counsel's failure to object to the allegedly improper comments by the prosecutor on summation does not constitute ineffective assistance of counsel.As previously noted, defendant was not denied a fair trial by those comments in which the prosecutor vouched for the credibility of witnesses, and the remaining instances of alleged prosecutorial misconduct on summation did not in fact constitute prosecutorial misconduct. With respect to the alleged ineffective assistance of counsel in connection with cross-examination concerning defend...