Opinion
2011-08-30
The PEOPLE, etc., respondent,v.Andrew SPENCER, appellant.
The Law Office of Tamara M. Harris, PLLC, New York, N.Y., for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Sharon Y. Brodt of counsel), for respondent.
The Law Office of Tamara M. Harris, PLLC, New York, N.Y., for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Sharon Y. Brodt of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 10, 2007, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), assault in the third degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Following an altercation with a third party, the defendant allegedly punched the complainant, an off-duty police officer who was outside his home, and then brandished a gun at him. The complainant subdued the defendant, and contacted other police officers, who arrested the defendant. At trial, the defendant claimed that the complainant had falsely implicated him, and that it was the third party who actually possessed the gun. The defendant sought to establish that the reason the complainant falsely implicated him was because the complainant and the third party had a friendly relationship, that they drag raced cars together, and that the complainant allowed the third party to deal drugs in front of his home.
“While extrinsic proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, when the evidence is too remote or speculative of a motive to fabricate, the trial court may, in its discretion, exclude such proof” ( People v. Garcia, 47 A.D.3d 830, 831, 849 N.Y.S.2d 637; see People v. Thomas, 46 N.Y.2d 100, 105, 412 N.Y.S.2d 845, 385 N.E.2d 584; People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164). Moreover, there must be a good-faith basis to support the motive to fabricate ( see People v. Hudy, 73 N.Y.2d 40, 57, 538 N.Y.S.2d 197, 535 N.E.2d 250; People v. Garcia, 47 A.D.3d at 831, 849 N.Y.S.2d 637; People v. Ocampo, 28 A.D.3d 684, 685, 813 N.Y.S.2d 217; People v. Sandel, 299 A.D.2d 373, 374, 749 N.Y.S.2d 554).
The defendant's contentions regarding the alleged bias or prejudice of the trial court are partly based on matter outside the record. To the extent that those contentions are based on matter outside the record, they are not reviewable on direct appeal from the judgment of conviction ( see People v. Cass, 79 A.D.3d 768, 770, 914 N.Y.S.2d 176; People v. Alston, 77 A.D.3d 762, 763, 909 N.Y.S.2d 115). To the extent that these contentions are reviewable, the record indicates that the trial court did not evince impermissible prejudice or bias. Although the trial court sustained a number of objections, most of the objections were properly sustained, and the “trial judge possesses the discretion to become involved in witness examination to the extent necessary to clarify issues and proof, and to ensure the orderly and expeditious progress of the trial” ( People v. Prado, 1 A.D.3d 533, 535, 767 N.Y.S.2d 129, affd. 4 N.Y.3d 725, 790 N.Y.S.2d 418, 823 N.E.2d 824; see
People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 422 N.E.2d 556; People v. Moulton, 43 N.Y.2d 944, 945–946, 403 N.Y.S.2d 892, 374 N.E.2d 1243). However, we caution the trial court about excessively interfering in the course of the trial, as “ there may be greater risk of prejudice from overintervention than from underintervention” ( People v. Yut Wai Tom, 53 N.Y.2d at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556).
The trial court did not err in admitting into evidence a tape of a 911 emergency call made by one of the witnesses, the wife of the complainant. Contrary to the defendant's contention, that tape was properly authenticated ( see People v. McPherson, 70 A.D.3d 1353, 1354, 894 N.Y.S.2d 710). Further, the trial court did not err in finding that the tape was admissible under the excited utterance and present sense impression exceptions to the hearsay rule ( see People v. Coad, 60 A.D.3d 963, 963–964, 876 N.Y.S.2d 107; People v. Dominick, 53 A.D.3d 505, 505–506, 862 N.Y.S.2d 520; People v. Davis, 49 A.D.3d 895, 896, 853 N.Y.S.2d 896).
The defendant contends that certain of the prosecutor's summation remarks deprived him of a fair trial. However, the defendant failed to object during summation when the prosecutor questioned whether the complainant would place his job and liberty at risk in order to falsely implicate the defendant and when he referred to a juvenile delinquency adjudication as a felony. Consequently, those challenges are not preserved for appellate review, and we decline to review them in the exercise of our interest of justice jurisdiction ( see CPL 470.05[2]; People v. Tonge, 93 N.Y.2d 838, 839–840, 688 N.Y.S.2d 88, 710 N.E.2d 653; People v. Salnave, 41 A.D.3d 872, 874, 838 N.Y.S.2d 657). The remaining summation comments challenged by the defendant constituted fair comment on the evidence or were responsive to arguments and theories presented in the defense summation ( see People v. Perez, 77 A.D.3d 974, 909 N.Y.S.2d 644; People v. Gordon, 306 A.D.2d 422, 760 N.Y.S.2d 873; People v. Turner, 214 A.D.2d 594, 625 N.Y.S.2d 233).
The defendant's remaining contentions are without merit.