People v. Spencer, 2007-11621

• Decision Date: 30 August 2011
• Docket Number: 2007-11621,Ind. No. 143/07
• Parties: The People of the State of New York, respondent, v. Andrew Spencer, appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 06390

The People of the State of New York, respondent,
v.
Andrew Spencer, appellant.

2007-11621
Ind. No. 143/07

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on August 30, 2011

WILLIAM F. MASTRO, J.P.
ANITA R. FLORIO
ARIEL E. BELEN
CHERYL E. CHAMBERS, JJ.

The Law Office of Tamara M. Harris, PLLC, New York, N.Y., 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.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 10, 2007, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), assault in the third degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Following an altercation with a third party, the defendant allegedly punched the complainant, an off-duty police officer who was outside his home, and then brandished a gun at him. The complainant subdued the defendant, and contacted other police officers, who arrested the defendant. At trial, the defendant claimed that the complainant had falsely implicated him, and that it was the third party who actually possessed the gun. The defendant sought to establish that the reason the complainant falsely implicated him was because the complainant and the third party had a friendly relationship, that they drag raced cars together, and that the complainant allowed the third party to deal drugs in front of his home.

"While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, when the evidence is too remote or speculative of a motive to fabricate, the trial court may, in its discretion, exclude such proof" (People v Garcia, 47 AD3d 830, 831; see People v Thomas, 46 NY2d 100, 105; People v Mestres, 41 AD3d 618). Moreover, there must be a good-faith basis to support the motive to fabricate (see People v Hudy, 73 NY2d 40, 57; People v Garcia, 47 AD3d at...