Opinion
2013-04-26
The PEOPLE of the State of New York, Respondent, v. Steven RIVERA, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Drew Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Drew Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1] ), criminal possession of a weapon in the second degree (§ 265. 03 [3] ), and criminal possession of a weapon in the third degree (§ 265.02 [1] ). Defendant failed to preserve for our review his contention that he was deprived of his constitutional right of confrontation by County Court's limitation of his cross-examination of a prosecution witness with respect to the witness's mental health ( see People v. Bryant, 93 A.D.3d 1344, 1344–1345, 941 N.Y.S.2d 426;People v. Bernardez, 63 A.D.3d 1174, 1175, 881 N.Y.S.2d 316,lv. denied13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438;see generally People v. Angelo, 88 N.Y.2d 217, 222, 644 N.Y.S.2d 460, 666 N.E.2d 1333). In any event, that contention, as well as defendant's further contention that the court abused its discretion in precluding further cross-examination about the witness's mental health, is without merit. “It is well settled that ‘[a]n accused's right to cross-examine witnesses ... is not absolute’ ... [and that t]he trial court has discretion to determine the scope of the cross-examination of a witness” ( People v. Corby, 6 N.Y.3d 231, 234, 811 N.Y.S.2d 613, 844 N.E.2d 1135, quoting People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730;see People v. Lester, 83 A.D.3d 1578, 1578, 921 N.Y.S.2d 435,lv. denied17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98;People v. Francisco, 44 A.D.3d 870, 870, 843 N.Y.S.2d 439,lv. denied9 N.Y.3d 1033, 852 N.Y.S.2d 19, 881 N.E.2d 1206). Thus, trial courts “retain wide latitude ... to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant” ( Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674;see Francisco, 44 A.D.3d at 870, 843 N.Y.S.2d 439). A defendant may question a witness about his or her mental health or psychiatric history upon a showing that the witness's “capacity to perceive and recall events was impaired by a psychiatric condition” ( People v. Gaffney, 30 A.D.3d 1096, 1096, 816 N.Y.S.2d 653,lv. denied7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282;see People v. Baranek, 287 A.D.2d 74, 78, 733 N.Y.S.2d 704) or that “such evidence would bear upon [the witness's] credibility or otherwise be relevant” ( People v. Middlebrooks, 300 A.D.2d 1142, 1143, 752 N.Y.S.2d 759,lv. denied99 N.Y.2d 630, 760 N.Y.S.2d 112, 790 N.E.2d 286 [internal quotation marks omitted]; see People v. Byers, 254 A.D.2d 494, 494, 679 N.Y.S.2d 838,lv. denied93 N.Y.2d 1043, 697 N.Y.S.2d 875, 720 N.E.2d 95;People v. Knowell, 94 A.D.2d 255, 260–261, 464 N.Y.S.2d 525). Here, we conclude that defendant failed to make the requisite showing that the witness in fact had a history of mental illness or that such evidence would bear upon her capacity to perceive or recall the events at issue ( see Middlebrooks, 300 A.D.2d at 1143, 752 N.Y.S.2d 759;Byers, 254 A.D.2d at 494, 679 N.Y.S.2d 838;Knowell, 94 A.D.2d at 261, 464 N.Y.S.2d 525). Defense counsel's statement that the witness was “suffering from or being treated for some variety of mental health issue” was speculative inasmuch as it was based upon the assertions that “everyone” was aware that the witness was taking unspecified “ mental health medications” and that the witness reportedly had visited a mobile “mental health unit” some three months after the events at issue. Thus, that statement was insufficient to warrant further cross-examination regarding the witness's mental condition ( see People v. Brown, 24 A.D.3d 884, 887, 806 N.Y.S.2d 262,lv. denied6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377;cf. Baranek, 287 A.D.2d at 78–79, 733 N.Y.S.2d 704;People v. Knowell, 127 A.D.2d 794, 794, 512 N.Y.S.2d 190).
We reject the further contention of defendant that the People committed a Brady violation by failing to disclose the identity of two witnesses in a timely manner. “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” ( People v. Fuentes, 12 N.Y.3d 259, 263, 879 N.Y.S.2d 373, 907 N.E.2d 286,rearg. denied13 N.Y.3d 766, 886 N.Y.S.2d 866, 915 N.E.2d 1163). We conclude that the evidence at issue is not exculpatory in nature and thus does not constitute Brady material ( see generally People v. King, 79 A.D.2d 992, 993, 434 N.Y.S.2d 462). Defendant sought the identity of and contact information for two witnesses named in a police report. According to the police report,the relevant witnesses said that they observed a group of five or six Hispanic males shooting at the victim. They described one of the suspects as “young” and another of the suspects as a thin Hispanic male with a “poof hairstyle pulled back.” Even assuming, arguendo, that those descriptions are inconsistent with defendant's physical appearance, we note that the witnesses were unable to describe the remaining members of the group, and the witnesses' descriptions therefore did not exclude defendant as a perpetrator ( see People v. Chin, 67 N.Y.2d 22, 33, 499 N.Y.S.2d 638, 490 N.E.2d 505;People v. Alvarez, 44 A.D.3d 562, 563–564, 845 N.Y.S.2d 230,lv. denied9 N.Y.3d 1030, 852 N.Y.S.2d 16, 881 N.E.2d 1203;People v. La Bombard, 99 A.D.2d 851, 852–853, 472 N.Y.S.2d 764;cf. People v. Daly, 57 A.D.3d 914, 915–917, 870 N.Y.S.2d 116,affd.14 N.Y.3d 848, 902 N.Y.S.2d 499, 928 N.E.2d 683). Moreover, we conclude that defendant was afforded “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People's witnesses or as evidence during his case” ( People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349), but he failed to do so ( see People v. Chandler, 279 A.D.2d 262, 262, 719 N.Y.S.2d 27,lv. denied96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214;see generally People v. Nielsen, 67 A.D.3d 1440, 1440–1441, 889 N.Y.S.2d 343).
Contrary to defendant's further contention, we conclude that the court did not abuse its discretion in removing him from the courtroom during the prosecutor's summation. Although a criminal defendant has a constitutional right to be present at his or her trial, a defendant may forfeit that right by engaging in disruptive behavior ( see People v. Parker, 92 A.D.3d 807, 807, 938 N.Y.S.2d 444,lv. denied19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216;People v. Sanchez, 7 A.D.3d 645, 646, 777 N.Y.S.2d 144,lv. denied3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837;People v. Jackson, 262 A.D.2d 1031, 1032, 693 N.Y.S.2d 378,lv. denied94 N.Y.2d 881, 705 N.Y.S.2d 13, 726 N.E.2d 490). Thus, a defendant “may be removed from the courtroom if, after being warned by the trial court, the disruptive conduct continues” ( People v. Joyner, 303 A.D.2d 421, 421, 755 N.Y.S.2d 866,lv. denied100 N.Y.2d 563, 763 N.Y.S.2d 820, 795 N.E.2d 46;seeCPL 260.20), and that is the case here ( see Parker, 92 A.D.3d at 807, 938 N.Y.S.2d 444;Jackson, 262 A.D.2d at 1032, 693 N.Y.S.2d 378;see also People v. Mercer, 66 A.D.3d 1368, 1369, 887 N.Y.S.2d 384,lv. denied13 N.Y.3d 940, 895 N.Y.S.2d 331, 922 N.E.2d 920).
Finally, we reject defendant's contention that he was entitled to an adverse inference charge on the ground that the police failed to record his interrogation ( see People v. McMillon, 77 A.D.3d 1375, 1375, 909 N.Y.S.2d 267,lv. denied16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981;People v. Holloway, 71 A.D.3d 1486, 1487, 897 N.Y.S.2d 373,lv. denied15 N.Y.3d 774, 907 N.Y.S.2d 463, 933 N.E.2d 1056;People v. Hammons, 68 A.D.3d 1800, 1801, 892 N.Y.S.2d 690,lv. denied14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.