Opinion
2012-12-19
The PEOPLE, etc., respondent, v. Lee KENNEDY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and George R. Painter IV of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and George R. Painter IV of counsel), for respondent.
ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered May 4, 2010, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court erred in modifying its Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) to permit the prosecutor to question the defendant regarding his gang membership, which the Supreme Court had previously ruled was to be precluded. Contrary to the People's contention, photographs depicting the defendant wearing gang attire, which were discovered during trial, did not provide new information relevant to the defendant's credibility ( cf. People v. Cooper, 78 A.D.3d 593, 914 N.Y.S.2d 80;People v. Ramos, 255 A.D.2d 203, 679 N.Y.S.2d 818). However, under the circumstances of this case, the error in permitting the questioning was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;People v. Duggins, 1 A.D.3d 450, 450–451, 766 N.Y.S.2d 702,affd.3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942). In contrast, the Supreme Court, as part of its Sandoval ruling, providently exercised its discretion in permitting the prosecutor to cross-examine a potential defense witness regarding his knowledge of the defendant's gang membership because this evidence tended to establish a motive for this witness to fabricate ( see People v. Ocampo, 28 A.D.3d 684, 813 N.Y.S.2d 217).
The defendant's challenges to various remarks made by the prosecutor during his summation are unpreserved for appellate review ( seeCPL 470.05[2] ), except for his challenge to the prosecutor's description of defense counsel's characterization of a police witness. In any event, all of the challenged remarks were within the bounds of permissible rhetorical comment, fair response to arguments and issues raised by the defense, or fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).