People v. Wrigglesworth

• Decision Date: 05 May 1994
• Citation: 611 N.Y.S.2d 678,204 A.D.2d 758
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian T. WRIGGLESWORTH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 678

611 N.Y.S.2d 678

204 A.D.2d 758

The PEOPLE of the State of New York, Respondent, v. Brian T. WRIGGLESWORTH, Appellant.

Supreme Court, Appellate Division Third Department.

May 5, 1994.

Peter J. Walsh, Albany, for appellant.

Sol Greenberg, Dist. Atty. (John E. Maney, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, WEISS and YESAWICH, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Albany County (Turner Jr., J.), rendered April 2, 1991, upon a verdict convicting defendant of the crime of assault in the first degree.

On the evening of August 14, 1989, defendant was involved in a confrontation over a pool table at Risko's Tavern in the City of Albany. He left and upon returning several hours later was ejected from the bar when he became involved in a second incident, this time with John Cotazino and Gary Benedict. Although these men delayed their departure to avoid defendant, he waited outside and attacked them, pushing Benedict to the ground and striking Cotazino with a stick that pierced his eyeball and ultimately required its removal. Defendant was arrested the following day when he returned to the tavern and was identified as the assailant by the barkeeper. He was convicted after trial and on this appeal has raised several contentions which we address individually.

Initially, defendant contends that he was improperly limited in his inquiry on cross-examination as to whether Cotazino and Benedict had substance abuse problems. The general rule is that evidence of such a problem is admissible to impeach the credibility of a witness if it tends to show that the witness was under the influence of an abused substance at the time of testimony or at the time of the events to which he testified, or if the witness's powers of perception or recollection were actually impaired by the problem (People v. Freeland, 36 N.Y.2d 518, 525, 369 N.Y.S.2d 649, 330 N.E.2d 611; People v. Rosario, 160 A.D.2d 1031, 554 N.Y.S.2d 739, lv. denied 76 N.Y.2d 795, 559 N.Y.S.2d 1000, 559 N.E.2d 694). Here, Cotazino freely acknowledged consumption of six to eight beers over the course of six hours but denied using cocaine. Other than this testimony and an erroneous interpretation of Cotazino's medical record, ¹ defendant failed to articulate a good-faith basis to support inquiry beyond Cotazino's actual consumption on the night of the assault. Benedict also acknowledged drinking during the evening in question. We hold that County Court did not improvidently exercise its discretion in refusing to permit inquiry beyond that time frame (see, People v. Rosario, supra, at 1032, 554 N.Y.S.2d 739). Similarly, County Court properly denied defendant's renewal of his earlier request for substance abuse records. Neither the trial record nor defendant's supporting affidavit suggest good cause for the release of the medical records of a patient maintained by a substance abuse treatment center (see, People v. Simon, 180 A.D.2d 866, 867, 580 N.Y.S.2d 493, lv. denied 80 N.Y.2d 838, 587 N.Y.S.2d 922, 600 N.E.2d 649). Moreover, defendant failed to make a timely offer of proof to establish a factual basis for a good-faith request.

Defendant's contention that County Court improperly denied admission of photographs taken of the crime scene sometime after the assault is without merit. Defendant failed to establish a proper foundation by showing they were a fair and accurate representation of the scene on August 15, 1989 (see, Moore v. Leaseway Transp. Corp., 49 N.Y.2d 720, 723, 426 N.Y.S.2d 259, 402 N.E.2d 1160).

We also do not agree that the prosecutor's summation was inflammatory and shifted the burden of proof, particularly by use of the phrase "dead defense". In the context of the entire summation, the reference was merely fair comment on the improbability of defendant's version of the events and was to a large extent responsive to the arguments made by defense counsel on his summation (see, People v. Wilkerson, 189 A.D.2d 592, 592 N.Y.S.2d 49, lv. denied 81 N.Y.2d 849, 595 N.Y.S.2d 749, 611 N.E.2d 788; People v. Morris, 159 A.D.2d 388, 389, 553 N.Y.S.2d 15, lv. denied 76 N.Y.2d 793, 559 N.Y.S.2d 998, 559 N.E.2d 692; People v. Bailey, 155 A.D.2d 262, 263, 547 N.Y.S.2d 28). The remaining complaints about the summation were not preserved for appellate review and any error was de minimis at best (see, People v. Moran, 154 A.D.2d 322, 546 N.Y.S.2d 611).

Nor do we find merit in defendant's contention that the People's rebuttal evidence was improper. Defendant affirmatively raised as a defense the theory that Cotazino's injury was accidental and probably caused by the pool cue case carried by Benedict. The rebuttal was directed to the cue case and whether it came in contact with Cotazino, and to clarify the nature of the instrument with which he was struck. This evidence was proper rebuttal to the affirmative claim by defendant (see, People v. Harris, 57 N.Y.2d 335, 345, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803; People v. Gonzalez, 175 A.D.2d 179, 180, 572 N.Y.S.2d 66, lv. denied 78 N.Y.2d 1011, 575 N.Y.S.2d 819, 581 N.E.2d 1065). The references to the weapon used and its similarity to the heavy end of a pool cue, while not technically rebuttal, were nevertheless properly admitted in the interest of justice (see, CPL 260.30[7]; People v. Miranda, 192 A.D.2d 725, 597 N.Y.S.2d 109, lv. denied 81 N.Y.2d 1076, 601 N.Y.S.2d 596, 619 N.E.2d 674).

Defendant next contends that the inquiry as to the cause of his disabled arm improperly insinuated that he had a propensity to become involved in fights. The circumstances underlying his injury, which ultimately proved to be irrelevant and nonprejudicial, were within the scope of cross-examination (see, People v. Betts, 70 N.Y.2d 289, 292, 520 N.Y.S.2d 370, 514 N.E.2d 865).

Defendant argues that the testimony of two prosecution eyewitnesses was incredible and unbelievable because of their intoxication. "Testimony will be rejected as being incredible as a matter of law when it is 'incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience or self-contradictory' " (People v. Shedrick, 104 A.D.2d 263, 274, 482 N.Y.S.2d 939, affd. 66 N.Y.2d 1015, 499 N.Y.S.2d 388, 489 N.E.2d 1290, qu...