Opinion
No. 2024-50441 No. 570761/17
04-17-2024
The People of the State of New York, Respondent, v. Phillip Smalls, Defendant-Appellant.
Unpublished Opinion
PRESENT: Hagler, P.J., Brigantti, Perez, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered November 3, 2017, after a jury trial, convicting him of two counts of forcible touching, and imposing sentence.
Judgment of conviction (Steven M. Statsinger, J.), rendered November 3, 2017, affirmed.
The verdict convicting defendant of two counts of forcible touching (see Penal Law § 130.52[1],[2]), was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, in which it credited the testimony of the victim and two police officers.
The court providently exercised its discretion in precluding the impeachment of the victim regarding her omission of a descriptive detail of defendant's conduct during the pretrial interview with the assistant district attorney, namely, her failure to precisely describe defendant's conduct as "grinding." The omission did not qualify as a prior inconsistent statement because defendant failed to show that the victim was drawn to those facts by specific questioning (see People v Bornholdt, 33 N.Y.2d 75, 88 [1973], cert denied 416 U.S. 905 [1974]). Furthermore, "the purported inconsistency rests on a slender semantic basis" (People v Jackson, 29 A.D.3d 400, 401 [2006], lv denied 7 N.Y.3d 790 [2006]), and had little or no probative value with regard to any issue other than general credibility (see People v Aska, 91 N.Y.2d 979, 981-982 [1998]; see also People v Duncan, 46 N.Y.2d 74, 80-81 [1978], cert denied 442 U.S. 910 [1979]). In any event, defendant received a full opportunity to attack the victim's credibility, and specifically questioned her about the incident and her statement to the assistant district attorney (see People v Rosario, 267 A.D.2d 73, 73 [1999], lv denied 94 N.Y.2d 952 [2000]). Since defendant never asserted a constitutional right to introduce the evidence, his constitutional claim is unpreserved (see People v Angelo, 88 N.Y.2d 217, 222 [1996]).
Even assuming that the court's ruling was erroneous, we would find that the error was harmless in light of the overwhelming unchallenged evidence of defendant's guilt (see People v Crimmins, 36 N.Y.2d 230, 241-243 [1975]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.