People v. Bird

198 A.D.2d 855, 604 N.Y.S.2d 424, 1993 N.Y. App. Div. LEXIS 11485

Opinion

—Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of assault in the first degree and criminal possession of a weapon in the third degree, defendant contends that the court improperly restricted his cross-examination of a key prosecution witness concerning that witness’ ingestion of LSD before observing the incident (see, People v Freeland, 36 NY2d 518). We conclude that the court did not restrict defendant’s cross-examination of that witness but that, rather, defense counsel himself terminated his questioning concerning the effect of the LSD on the witness’ perception of the incident after the witness testified that the LSD did not affect his ability to recall the incident. Defendant’s arguments concerning prosecutorial misconduct are unpreserved and lacking in merit. Defendant’s sentence was not harsh and excessive. We have examined defendant’s remaining argument on appeal and we find it to be without merit. (Appeal from Judgment of Niagara County Court, DiFlorio, J. — Assault, 1st Degree.) Present — Callahan, J. P., Pine, Balio, Doerr and Boomer, JJ.