Opinion
2019–11415 Ind. No. 3420/18
03-09-2022
The PEOPLE, etc., respondent, v. Arron J. AGOSTO, appellant.
Patricia Pazner (White & Case LLP, New York, NY [Claudine Columbres, Jade Yoo, and Sandra Redivo ], of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Dmitriy Povazhuk, and Solomon Neubort of counsel), for respondent.
Patricia Pazner (White & Case LLP, New York, NY [Claudine Columbres, Jade Yoo, and Sandra Redivo ], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Dmitriy Povazhuk, and Solomon Neubort of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, REINALDO E. RIVERA, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered September 19, 2019, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
In the context of a Huntley hearing ( People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ), the People are not necessarily "mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited" ( People v. Witherspoon, 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758 ; see People v. Giron, 181 A.D.3d 710, 710–711, 117 N.Y.S.3d 858 ; People v. Cuevas, 172 A.D.3d 567, 567, 100 N.Y.S.3d 257 ). The People are only required to produce police officers who interacted with a defendant prior to a confession where the defendant sets forth a " ‘bona fide factual predicate’ to demonstrate that the uncalled officers possessed material evidence on the question of voluntariness" ( People v. Cuevas, 172 A.D.3d at 567, 100 N.Y.S.3d 257, quoting People v. Witherspoon, 66 N.Y.2d at 974, 498 N.Y.S.2d 789, 489 N.E.2d 758 ; see People v. Giron, 181 A.D.3d at 711, 117 N.Y.S.3d 858 ). Here, the record does not show that there existed a bona fide factual predicate that would have required the production of the subject police witness (see People v. Witherspoon, 66 N.Y.2d at 974, 498 N.Y.S.2d 789, 489 N.E.2d 758 ; People v. Giron, 181 A.D.3d at 711, 117 N.Y.S.3d 858 ). Accordingly, the Supreme Court properly denied suppression of the defendant's statements to law enforcement officials.
Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination (see U.S. Const 6th Amend; NY Const, art I, § 6 ), that right is not unfettered (see People v. Wingate, 184 A.D.3d 738, 739, 125 N.Y.S.3d 724 ). "The trial court has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury" ( People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439 ; see People v. Wingate, 184 A.D.3d at 739, 125 N.Y.S.3d 724 ). Here, the Supreme Court providently exercised its discretion in curtailing the cross-examination of the complainant regarding incidents that allegedly took place within a non-relevant period of time (see People v. Simms, 178 A.D.3d 963, 964, 112 N.Y.S.3d 523 ).
"[A] defendant is justified in using ‘deadly physical force’ upon another only if that defendant ‘reasonably believes that such other person is using or about to use deadly physical force’ " ( People v. Brown, 33 N.Y.3d 316, 320, 102 N.Y.S.3d 143, 125 N.E.3d 808, quoting Penal Law § 35.15[2][a] ; see People v. Anderson, 180 A.D.3d 923, 120 N.Y.S.3d 63, affd 36 N.Y.3d 1109, 144 N.Y.S.3d 678, 168 N.E.3d 851 ). A justification defense may be negated by proof that "[t]he physical force involved is the product of a combat by agreement not specifically authorized by law" ( Penal Law § 35.15[1][c] ; see People v. Anderson, 180 A.D.3d at 923, 120 N.Y.S.3d 63 ). An agreement to engage in combat not authorized by law can be a tacit agreement (see People v. Russell, 91 N.Y.2d 280, 288–290, 670 N.Y.S.2d 166, 693 N.E.2d 193 ; People v. Young, 33 A.D.3d 1120, 1124, 825 N.Y.S.2d 147 ). Here, there was a reasonable view of the evidence under which the jury could have found there was a tacit agreement by the defendant and the complainant to engage in combat not authorized by law. Therefore, the Supreme Court properly instructed the jury regarding combat by agreement (see generally People v. Russell, 91 N.Y.2d at 288–290, 670 N.Y.S.2d 166, 693 N.E.2d 193 ; People v. Young, 33 A.D.3d at 1120–1124, 825 N.Y.S.2d 147 ).
BRATHWAITE NELSON, J.P., IANNACCI, RIVERA and FORD, JJ., concur.