Opinion
2012-12-21
The PEOPLE of the State of New York, Respondent, v. Makesha JIMMESON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting her, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that Supreme Court erred in refusing to permit her to present evidence of a prior altercation involving defendant and the victim to demonstrate the character of defendant as well as that of the victim. We reject that contention. Character evidence “ ‘is strictly limited to testimony concerning the [party's] reputation’ ” in the community ( People v. Mancini, 213 A.D.2d 1038, 1039, 627 N.Y.S.2d 488,lv. denied85 N.Y.2d 976, 629 N.Y.S.2d 736, 653 N.E.2d 632;see People v. Kuss, 32 N.Y.2d 436, 443, 345 N.Y.S.2d 1002, 299 N.E.2d 249,rearg. denied33 N.Y.2d 644, 347 N.Y.S.2d 1028, 301 N.E.2d 558,cert. denied415 U.S. 913, 94 S.Ct. 1408, 39 L.Ed.2d 467), and thus “a character witness may not testify to specific acts” in order to establish character ( Mancini, 213 A.D.2d at 1039, 627 N.Y.S.2d 488;see People v. Ciccone, 90 A.D.3d 1141, 1144, 934 N.Y.S.2d 563,lv. denied19 N.Y.3d 863, 947 N.Y.S.2d 411, 970 N.E.2d 434). The court also properly refused to allow defendant to present evidence of the prior altercation in order to impeach the trial testimony of two prosecution witnesses. “It is well established that the party who is cross-examining a witness cannot ... call other witnesses to contradict a witness' answers concerning collateral matters solely for the purposes of impeaching that witness' credibility” ( People v. Pavao, 59 N.Y.2d 282, 288–289, 464 N.Y.S.2d 458, 451 N.E.2d 216;see People v. Caswell, 49 A.D.3d 1257, 1258, 856 N.Y.S.2d 338,lv. denied11 N.Y.3d 735, 864 N.Y.S.2d 393, 894 N.E.2d 657). Finally, defendant failed to preserve for our review her present contention that evidence of the prior altercation was admissible to establish that she did not have a motive to assault the victim and that the two prosecution witnesses had a motive to fabricate their trial testimony ( seeCPL 470.05[2]; People v. Coapman, 90 A.D.3d 1681, 1683, 936 N.Y.S.2d 454,lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.