People v. Rivera

• Decision Date: 31 December 1998
• Docket Number: No. 1,1
• Citation: 685 N.Y.S.2d 164
• Parties: 1998 N.Y. Slip Op. 11,949 PEOPLE of the State of New York, Respondent, v. Hector RIVERA, Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 164

685 N.Y.S.2d 164

1998 N.Y. Slip Op. 11,949

PEOPLE of the State of New York, Respondent, v. Hector RIVERA, Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Edward J. Nowak by Stephanie Batcheller, Rochester, for Appellant.

Howard R. Relin by Elizabeth Clifford, Rochester, for Respondent.

Present: PINE, J.P., HAYES, WISNER, PIGOTT, Jr., and BOEHM, JJ.

MEMORANDUM:

Defendant was convicted after a jury trial of robbery in the first degree (Penal Law § 160.15), robbery in the second degree (Penal Law § 160.10), robbery in the third degree (Penal Law § 160.05) and petit larceny (Penal Law § 155.25).

Defendant contends that Supreme Court improperly restricted defense counsel's cross-examination of the victim, the sale eyewitness. "The scope of cross-examination is within the sound discretion of the trial court" (People v. Snell, 234 A.D.2d 986, 652 N.Y.S.2d 455, lv. denied 89 N.Y.2d 1015, 658 N.Y.S.2d 254, 680 N.E.2d 628). The court properly exercised its discretion in precluding certain questioning regarding the reliability of the identification of defendant because that questioning sought to elicit testimony that constituted hearsay (see, People v. Hargrove, 213 A.D.2d 492, 624 N.Y.S.2d 39, lv. denied 87 N.Y.2d 846, 638 N.Y.S.2d 605, 661 N.E.2d 1386) and testimony that was irrelevant (see, People v. Martinez, 177 A.D.2d 600, 601, 575 N.Y.S.2d 938, lv. denied 79 N.Y.2d 829, 580 N.Y.S.2d 210, 588 N.E.2d 108). The court also properly exercised its discretion in curtailing further cross-examination regarding the victim's credibility (see, People v. Queeglay, 237 A.D.2d 896, 656 N.Y.S.2d 1015, lv. denied 90 N.Y.2d 866, 661 N.Y.S.2d 193, 683 N.E.2d 1067). The court's "discretion includes limiting the scope of cross-examination concerning collateral issues designed solely to impeach the witness's credibility" (People v. Perotti, 233 A.D.2d 936, 649 N.Y.S.2d 899, lv. denied 89 N.Y.2d 945, 655 N.Y.S.2d 896, 678 N.E.2d 509). The court properly sustained the prosecutor's objections to questions of the witness concerning the ownership of the store where the robbery occurred and the financing involved in the purchase of the store (see, People v. Sloan, 242 A.D.2d 898, 665 N.Y.S.2d 946, lv. denied 91 N.Y.2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651; People v. Gugino [appeal No. 1], 229 A.D.2d 968, 645 N.Y.S.2d 249, lv. denied 89 N.Y.2d 864, 653 N.Y.S.2d 287, 675 N.E.2d 1240).

We reject the contention of defendant that the court improperly restricted the scope of the testimony of an alibi witness on redirect examination. "The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court" (People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324), and here the court did not abuse its discretion.

Defendant contends that the court erred in failing to include in its charge on eyewitness identification the language in the pattern Criminal Jury Instructions (see, 1 CJI[N.Y.] 10.01, at 583-586) requested by defendant and that the charge was unbalanced. Although it would have been preferable for the court to include that language in its charge, "when viewed in its entirety, the charge accurately conveyed to the jury the way in which to evaluate the identification testimony and instructed the jury that identification must be proved beyond a reasonable doubt" (People v. McMillan, 231 A.D.2d 841, 648 N.Y.S.2d 63, lv. denied 89 N.Y.2d 987, 656 N.Y.S.2d 746, 678 N.E.2d 1362, cert. denied --- U.S. ----, 118 S.Ct. 95, 139 L.Ed.2d 51; see, People v. Whalen, 59 N.Y.2d 273, 278-279, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Brown, 203 A.D.2d 474, 610 N.Y.S.2d 327). Defendant's contention that the identification charge was not balanced is not preserved for our review (see, CPL 470.05[2] ) and, in any event, lacks merit (cf., People v. Hall, 155 A.D.2d 344, 547 N.Y.S.2d 312).

Defendant likewise failed to preserve for our review his contention that the court erroneously instructed the jury in its charge on the alibi defense (see, CPL 470.05[2]; People v. Whalen, supra, at 280, 464 N.Y.S.2d 454, 451 N.E.2d 212). We decline to exercise our power to review that contention as a matter of discretion in the interest of...