People v. Nappi

• Decision Date: 29 April 2011
• Citation: 83 A.D.3d 1592,922 N.Y.S.2d 669,2011 N.Y. Slip Op. 03480
• Parties: The PEOPLE of the State of New York, Respondent,v.Donato NAPPI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1592

922 N.Y.S.2d 669

2011 N.Y. Slip Op. 03480

The PEOPLE of the State of New York, Respondent,

v.Donato NAPPI, Defendant–Appellant.

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

April 29, 2011.

Christopher J. Pelli, Utica (Simone M. Shaheen of Counsel), for Defendant–Appellant.John H. Crandall, Sr., District Attorney, Herkimer (Jacquelyn M. Asnoe of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's challenge to the legal sufficiency of the evidence before the grand jury “is not properly before us on this ‘appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence’ ” ( People v. McCullough, 83 A.D.3d 1438, 919 N.Y.S.2d 739). We reject defendant's further contention that the integrity of the grand jury was impaired inasmuch as the People have no duty “to present all evidence in their possession that is favorable to [defendant]” ( People v. Lancaster, 69 N.Y.2d 20, 26, 511 N.Y.S.2d 559, 503 N.E.2d 990, cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697; see also People v. Bean, 66 A.D.3d 1386, 885 N.Y.S.2d 804, lv. denied 14 N.Y.3d 769, 898 N.Y.S.2d 101, 925 N.E.2d 106).

Defendant contends that County Court erred in allowing his wife, a prosecution witness, to give certain testimony because it violated the marital privilege ( see CPLR 4502[b]; CPL 60.10; People v. Fediuk, 66 N.Y.2d 881, 883, 498 N.Y.S.2d 763, 489 N.E.2d 732). We reject that contention inasmuch as defendant's words and actions at issue were in furtherance of a criminal enterprise ( see generally People v. Smythe, 210 A.D.2d 887, 620 N.Y.S.2d 647, lv. denied 85 N.Y.2d 943, 627 N.Y.S.2d 1005, 651 N.E.2d 930; People v. Watkins, 63 A.D.2d 1033, 1034, 406 N.Y.S.2d 343, lv. denied 45 N.Y.2d 785, 409 N.Y.S.2d 1043, 381 N.E.2d 178, cert. denied 439 U.S. 984, 99 S.Ct. 575, 58 L.Ed.2d 656). In any event, any error with respect to that testimony is harmless inasmuch as the proof of defendant's guilt was overwhelming and there is no significant probability that he would have been acquitted but for the error ( see People v. Marinaccio, 15 A.D.3d 932, 788 N.Y.S.2d 784; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Defendant further contends that reversal is required because the evidence at trial with respect to the date of the offense was at variance with the date alleged in the indictment. We reject that contention. “An indictment must contain ... [a] statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time” (CPL 200.50[6] [emphasis added] ). Here, the indictment alleged that the offense occurred “on or about the 5th day of January, 2009.” Although evidence was presented at trial with respect to defendant's conduct during a period of time prior to that date, reversal is not required because “[t]he time of the offense is not a material element of the offense and the variance is relatively minor” ( People v. Davis, 15 A.D.3d 920, 921, 788 N.Y.S.2d 779, lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975, 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668).

The court properly refused to suppress the gun and ammunition that was seized from defendant's residence by his parole officer. A defendant's parole officer may conduct a warrantless search where “the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer's duty” ( People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794). We conclude that the parole officer's search of the residence was rational and reasonably related to the performance of his duty of preventing “parole violations for the protection of the public from the commission of further crimes” ( id.; see People v. Maynard, 67 A.D.3d 1391, 887 N.Y.S.2d 882, lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 778, 929 N.E.2d 1013; People v. Johnson, 54 A.D.3d 969, 970, 864 N.Y.S.2d 132). The parole officer had a rational and reasonable basis to believe a gun would be located in the residence based on the information given to him by defendant's wife ( see People v. Felder, 272 A.D.2d 884, 708 N.Y.S.2d 774, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151), and the fact that police officers assisted after the gun was found by obtaining a warrant to search the remainder of the premises did not render the initial search by the parole officer a police operation ( see Johnson, 54 A.D.3d at 970, 864 N.Y.S.2d 132).

Contrary to defendant's contention, the court properly precluded defendant from cross-examining a prosecution witness concerning certain collateral matters. “The trial court has broad discretion to limit the scope of cross-examination when the questions ... concern collateral issues” ( People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439, lv. denied 9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206; see People v. Neal, 294 A.D.2d 869, 740 N.Y.S.2d 917, lv. denied 98 N.Y.2d 700, 747 N.Y.S.2d 419, 776 N.E.2d 8). Likewise, the court properly precluded defendant from calling certain witnesses to testify inasmuch as that testimony would also have concerned collateral matters. A defendant may not “ ‘introduce extrinsic...