People v. Ferguson

15 A.D.3d 675, 790 N.Y.S.2d 237, 2005 N.Y. App. Div. LEXIS 2045

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2005
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County, (McCann, J.), rendered February 25, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s claim that the prosecutor engaged in misconduct during the cross-examination of one of his witnesses is largely unpreserved for appellate review (see People v Hobbs, 1 AD3d 610 [2003]; People v Hunte, 276 AD2d 717 [2000]; People v Green, 272 AD2d 341 [2000]). In any event, the defendant was not deprived of a fair trial by the allegedly improper conduct (see People v Hunte, supra; People v Green, supra).

The defendant failed to demonstrate a substantial likelihood of prejudice when one of the prosecutors testified in rebuttal, solely to authenticate an audiotape of a conversation with a defense witness (see People v Paperno, 54 NY2d 294 [1981]; People v Cannady, 243 AD2d 642 [1997]; People v Strawder, 106 AD2d 672 [1984]; People v Lester, 99 AD2d 611 [1984]).

The defendant’s contention that the trial court erred in permitting the People to introduce the audiotape in rebuttal is unpreserved for appellate review (see People v Bailey, 12 AD3d 377 [2004], lv denied 4 NY3d 741 [ 2004]; People v Maldonado, 212 AD2d 808 [1995]). In any event, the audiotape was properly admitted since it contradicted the testimony of the defense witness regarding the issue of self-defense. Although the audiotape tended to impeach the credibility of the witness, it was not collateral, since it related to a material issue in the case (see People v Wise, 46 NY2d 321 [1978]; People v Rosario, 298 AD2d 244 [2002]; People v Wilson, 297 AD2d 298 [2002]; People v Green, 197 AD2d 704 [1993]). Krausman, J.P., Mastro, Rivera and Skelos, JJ., concur.