People v. Thomas

• Decision Date: 26 October 2016
• Citation: 40 N.Y.S.3d 462,143 A.D.3d 1006,2016 N.Y. Slip Op. 07040
• Parties: The PEOPLE, etc., respondent, v. Tracy THOMAS, appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1006

40 N.Y.S.3d 462

2016 N.Y. Slip Op. 07040

The PEOPLE, etc., respondent,

v.Tracy THOMAS, appellant.

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

Oct. 26, 2016.

Lynn W.L. Fahey, New York, NY (Laura B. Tatelman of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Merri Turk Lasky, and John F. McGoldrick of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered May 6, 2013, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of marijuana in the fifth degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested when the police found marijuana and a loaded firearm in his car after a legal traffic stop. At the time of the stop, the defendant was seated in the front passenger seat, his friend (hereinafter the driver) was driving, and another occupant was seated in the back seat. At trial, the driver testified on behalf of the People, pursuant to a cooperation agreement, that she spoke to the defendant in jail after his arrest and he told her that he knew the gun was in the trunk of the vehicle. On cross-examination, the driver testified that the defendant further stated that he only learned about the gun after his arrest when he was in jail with the other occupant of the vehicle. On redirect examination, the prosecutor used the driver's grand jury testimony to refresh her recollection as to another portion of that same conversation with the defendant. The driver then testified that the defendant also stated during that conversation that he was talking about the same gun that was the basis for the charges against the driver herself, and that he knew the gun was in the trunk of the car.

The defendant's contentions that the prosecutor improperly attempted to impeach the driver on redirect examination are unpreserved for appellate review (see CPL 470.05[2] ; People v. Rivera, 130 A.D.3d 487, 13 N.Y.S.3d 414 ; People v. Escobar, 275 A.D.2d 659, 713 N.Y.S.2d 685 ). In any event, the defendant's contentions are without merit. On cross-examination, defense counsel raised the issue of the driver's motive for testifying and her credibility, and therefore, in response, the People properly elicited testimony on redirect, including the driver's promise to testify truthfully as required by the cooperation agreement (see People v. Choi, 137 A.D.3d 808, 809, 26 N.Y.S.3d 333 ). Furthermore, the driver's grand jury testimony was properly used to refresh her recollection as to additional portions of the conversation she had with the defendant regarding the gun (see CPL 60.35 [3] ; People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759 ; People v. Mejia, 292 A.D.2d 189, 739 N.Y.S.2d 42 ; People v. Carrion, 277 A.D.2d 480, 481, 715 N.Y.S.2d 257 ).

The defendant's contentions regarding allegedly improper comments in the prosecutor's summation are unpreserved for appellate review, as the defendant either failed to object to the comments or failed to request additional curative action, and untimely moved for a mistrial (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Harris, 98 N.Y.2d 452, 492, 749 N.Y.S.2d 766, 779 N.E.2d 705 ; People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ; People v. Grant, 137 A.D.3d 938, 26 N.Y.S.3d 483 ; People v. Adams, 93 A.D.3d 734, 735, 940 N.Y.S.2d 158 ; People v. Malave, 7 A.D.3d 542, 775 N.Y.S.2d 588 ; People v. White, 5 A.D.3d 511, 772 N.Y.S.2d 601 ). In any event, the defendant's contentions are without merit. Counsel is to be afforded the widest latitude in making summation arguments and has the right...