Opinion
December 27, 2000.
Appeal from Judgment of Monroe County Court, Bristol, J. — Murder, 2nd Degree.
PRESENT: HAYES, J.P., HURLBUTT, SCUDDER, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25) and two counts of robbery in the first degree (Penal Law § 160.15, [3]). Defendant contends that he was in custody without probable cause and thus that his statement should have been suppressed as the product of an unlawful arrest and detention. We disagree. The identified citizen informant who witnessed the crime is presumed to be reliable and her basis of knowledge was her observation of the crime she described ( see, People v. Hetrick, 80 N.Y.2d 344, 348-349; People v. Rivera, 210 A.D.2d 895, 895-896; People v. Robbins, 198 A.D.2d 451). In view of the young age of the citizen informant, who was only 14 years old, and her expressed fear in coming forward with the information, the fact that she gave a different version of the events to the police in a prior statement did not render her identification of defendant inherently unreliable. Based on her statement, the police had probable cause to arrest defendant ( see, People v Blanco , 253 A.D.2d 886, lv denied 92 N.Y.2d 1028). Defendant further contends that his statement was rendered involuntary as a result of police deception. Although the police deceived defendant by falsely reporting that the victim gave a dying declaration implicating defendant, the deception "was not so fundamentally unfair as to deny defendant due process [nor was it] accompanied by a promise or threat likely to produce a false confession" ( People v. Dickson, 260 A.D.2d 931, 932, lv denied 93 N.Y.2d 1017; see, People v. Tarsia, 50 N.Y.2d 1, 11).
Contrary to defendant`s contention, the People did not change the theory of the prosecution from principal to accessorial liability but, in any event, "[w]hether a defendant is charged as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution" ( People v. Rivera, 84 N.Y.2d 766, 769; see, People v. Guidice, 83 N.Y.2d 630, 636-637). Defendant's contention that a photograph of the victim was inflammatory and should not have been admitted in evidence lacks merit. County Court properly determined that the probative value of the photograph outweighed any prejudice to defendant ( see, People v Stevens, 76 N.Y.2d 833, 835-836; People v. Upshaw, 242 A.D.2d 548, 549, lv denied 91 N.Y.2d 882). The photograph was relevant with respect to the location of the victim in the apartment when the police arrived ( see, People v. Wilson, 168 A.D.2d 696, 697-698).
Defendant further contends that the prosecutor violated CPL 60.35 by eliciting details of a prior statement of a prosecution witness during his direct examination of that witness. Even assuming that the prosecutor erred in questioning the witness concerning discrepancies between that statement and her trial testimony ( see, CPL 60.35; People v. Polhill, 140 A.D.2d 462, 464, lv denied 72 N.Y.2d 923), we conclude that the error is harmless ( see, People v. Matusak, 206 A.D.2d 903, lv denied 84 N.Y.2d 908; People v. Barber, 179 A.D.2d 1002, 1003, lv denied 79 N.Y.2d 997).
The court did not abuse its discretion in limiting defendant `s cross-examination of a prosecution witness. Defense counsel "was given considerable latitude to cross-examine that witness concerning [her] potential bias" ( People v. James, 191 A.D.2d 957, 958, lv denied 82 N.Y.2d 720, cert denied 510 U.S. 1077), and the court's ruling did not deny defendant "the right of effective cross-examination" ( Davis v. Alaska, 415 U.S. 308, 318). Defendant's contention that the conviction is not supported by legally sufficient evidence is not preserved for our review ( see, People v. Gray, 86 N.Y.2d 10, 19), and, in any event, lacks merit ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The verdict is not against the weight of the evidence (see, People v. Bleakley, supra, at 495).
Defendant contends that the affirmative defense to felony murder is unconstitutional because it shifts the burden of proof to defendant. That contention is unpreserved for our review ( see, CPL 470.05; People v. Iannelli , 69 N.Y.2d 684, 685, cert denied 482 U.S. 914), and, in any event, is without merit ( see, People v. Bornholdt, 33 N.Y.2d 75, 82-86, cert denied sub nom. Victory v. New York, 416 U.S. 905; see also, People v. Howard, 241 A.D.2d 920, 921, lv denied 90 N.Y.2d 940). The sentence is neither unduly harsh nor severe.