People v. Smith

• Decision Date: 28 September 2001
• Docket Number: 4,01-00453
• Parties: PEOPLE OF THE STATE OF NEW YORK,POLLY SMITH,KA 01-00453. (Wayne Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

POLLY SMITH, DEFENDANT-APPELLANT

KA 01-00453. (Wayne Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

September 28, 2001

PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, BURNS AND LAWTON, JJ.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her after a jury trial of manslaughter in the first degree (Penal Law § 125.20 [1]) and reckless driving (Vehicle and Traffic Law § 1212). County Court did not abuse its discretion in denying defendant's request for youthful offender status. The determination whether to grant youthful offender status rests within the sound discretion of the court and "depends upon all the attending facts and circumstances of the case" (People v Ortega, 114 A.D.2d 912, lv denied 67 N.Y.2d 887; see also, People v Pappas, 198 A.D.2d 918, lv denied 82 N.Y.2d 928). Here, defendant had a history of violent behavior toward the victim, and thus it cannot be said that the court abused its discretion in denying defendant's request for youthful offender status.

Further, the court properly limited defense counsel's impeachment of a prosecution witness (see generally, People v Victory, 33 N.Y.2d 75, 88-89, cert denied 416 US 905). Defendant failed to preserve for our review her further contention that the court erred in allowing the prosecutor to examine defendant's boyfriend as a hostile witness (see, CPL 470.05 [2]). Defense counsel made no objection to the court's ruling allowing the examination, and thus "counsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved" (People v Starling, 85 N.Y.2d 509, 516). Defense counsel's objection to leading questions well into the examination is not sufficient to preserve defendant's contention for our review (see, People v Starling, supra, at 516). In any event, the contention lacks merit. Where, as here, the witness responds to questions in an evasive manner, it is within the court's discretion to designate him a hostile witness (see, People v Davis, 163 A.D.2d 826, 826-827, lv denied 76 N.Y.2d 939; see also, People v Rozanski, 209 A.D.2d 1018, 1018-1019, lv denied 84 N.Y.2d 1038). We conclude that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Wayne County Cou...