People v. McCalla

• Citation: 934 N.Y.S.2d 724,90 A.D.3d 949,2011 N.Y. Slip Op. 09347
• Parties: The PEOPLE, etc., respondent, v. Cedric McCALLA, appellant.
• Decision Date: 20 December 2011
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09347

90 A.D.3d 949

934 N.Y.S.2d 724

The PEOPLE, etc., respondent,

v.Cedric McCALLA, appellant.

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

Dec. 20, 2011.

Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Sharon Y. Brodt of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered June 9, 2009, convicting him of assault in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The trial court providently exercised its discretion in limiting the scope of defense counsel's questioning of prospective jurors during voir dire ( see CPL 270.15[1][c]; People v. Pepper, 59 N.Y.2d 353, 358, 359, 465 N.Y.S.2d 850, 452 N.E.2d 1178; People v. Byrd, 284 A.D.2d 201, 728 N.Y.S.2d 134; People v. Corbett, 68 A.D.2d 772, 778–779, 418 N.Y.S.2d 699, affd. 52 N.Y.2d 714, 436 N.Y.S.2d 273, 417 N.E.2d 567).

As the People correctly concede, the defendant's conviction of assault in the third degree must be vacated and that count of the indictment dismissed as an inclusory concurrent count of assault in the *725 second degree ( see CPL 300.40[3][b]; Penal Law §§ 120.05[1], 120.00[1] ).

RIVERA, J.P., ENG, ROMAN and SGROI, JJ., concur.