People v. Green (David)

73 Misc. 3d 129(A), 2021 NY Slip Op 50929(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 1, 2021
• Docket: 570375/16
• Status: Unpublished

Opinion

People v Green (2021 NY Slip Op 50929(U)) [*1]

People v Green (David)

2021 NY Slip Op 50929(U) [73 Misc 3d 129(A)]

Decided on October 1, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead P.J., Brigantti, Hagler, JJ.
570375/16

The People of the State of New York, Respondent,

against

David Green, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered May 18, 2016, after a nonjury trial, convicting him of criminal trespass in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Steven M. Statsinger, J.), rendered May 18, 2016, affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). There is no basis for disturbing the court's credibility determinations. The evidence presented by the People established that defendant entered into a subway platform without paying the required fare, by passing through an exit gate.

The court providently exercised its discretion (see People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]) when it denied defendant's request to impeach the testifying police officer with extrinsic evidence concerning the officer's omission of certain detail in his interview with the assistant district attorney, i.e. that he was on the southbound platform when he observed defendant. The omission did not qualify as a prior inconsistent statement because defendant failed to show that the officer was drawn to those facts by specific questioning (see People v Bornholdt, 33 NY2d 75, 88 [1973], cert denied sub nom. Victory v New York, 416 US 905 [1974]). Furthermore, the purported inconsistency "rests on a slender semantic basis and lacks probative value" (People v Jackson, 29 AD3d 400, 401 [2006], lv denied 7 NY3d 790 [2006]), since the impeachment evidence defendant sought to introduce did not imply that the officer previously indicated that he did not remember whether he was on the northbound or southbound platform. In any event, defendant received a full opportunity to attack the officer's credibility, and specifically questioned him about where he was standing and his statement to the assistant district attorney (see People v Rosario, 267 AD2d 73, 73 [1999], lv denied 94 NY2d 952 [2000]). Since defendant never asserted a constitutional right to introduce the evidence, his constitutional claim is unpreserved (see People v Angelo, 88 NY2d 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 NY2d 230, 241-242 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 1, 2021