People v. Scott
| Decision Date | 18 October 1993 |
| Citation | 197 A.D.2d 646,602 N.Y.S.2d 684 |
| Parties | The PEOPLE, etc., Respondent, v. Wayne SCOTT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Port & Port, Brooklyn (Leon R. Port, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Victor Barall, and Camille O'Hara Gillespie, of counsel), for respondent.
Before BALLETTA, J.P., and ROSENBLATT, MILLER and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered January 5, 1989, convicting him of robbery in the first degree (three counts), assault in the second degree (six counts), and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing the convictions of robbery in the first degree under count 10 and assault in the second degree under counts 13 and 16 of the indictment, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on counts 10, 13, and 16 of the indictment.
The defendant contends that the admission into evidence of the testimony of Carlos Zeno given at the earlier trial of the codefendant, Bradley Wilkerson, pursuant to CPL 670.10, violated the defendant's constitutional right to confrontation. This issue is unpreserved for appellate review (see, People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616). However, as a matter of discretion in the interest of justice, we find that the testimony was improperly admitted (see, People v. Simmons, 36 N.Y.2d 126, 365 N.Y.S.2d 812, 325 N.E.2d 139). This testimony constituted important evidence of the defendant's guilt as to counts 10, 13, and 16 of the indictment, charging the defendant with one count of robbery of Carlos Zeno and two counts of assault of Carlos Zeno. Therefore, a new trial is warranted as to those three counts.
The defendant contends that it was reversible error for the prosecutor to ask a defense witness, on cross-examination, if he was aware that the codefendant was serving a life sentence. The court sustained the defense counsel's objection and instructed the jury to disregard the question. The defendant posed no further objection. Thus, the defendant failed to preserve the issue for appellate review, and it must be assumed that the court cured any error to the defendant's satisfaction (see, People v. Medina, 53 N.Y.2d 951, 441 N.Y.S.2d 442, 424...
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