People v. McCleary

Appellate Division of the Supreme Court of New York

People v. McCleary

181 A.D.2d 1029

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 1992

StatusPublished

Cited by2 cases

This text of 181 A.D.2d 1029 (People v. McCleary) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McCleary, 181 A.D.2d 1029 (N.Y. Ct. App. 1992).

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Opinion

— Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). The conviction arises out of an altercation between defendant and an acquaintance in defendant’s residence. During the brief scuffle, the victim sustained a severe laceration to his head which required suturing at a local hospital. Defendant maintained that he struck the victim only with his fists, while the victim testified that he was hit on the head with a wooden table leg.

Defendant contends that the trial court committed reversible error by allowing the prosecutor to cross-examine defendant’s brother regarding his failure to come forward with potentially exculpatory information prior to trial. The People may lay a foundation for such questioning by demonstrating that the witness: (1) was aware of the nature of the charges pending against the defendant; (2) had reason to recognize that he possessed exculpatory information; (3) had a reasonable motive for acting to exonerate the defendant; and (4) was familiar with the means to make the information available to law enforcement authorities (see, People v Dawson, 50 NY2d 311, 321, n 4). In our view, County Court abided by the [1030]*1030conditions and safeguards enunciated in People v Dawson (supra) and the impeachment evidence was properly admitted.

Defendant has not preserved his claim that he was denied a fair trial by the prosecutor’s conduct in eliciting improper and highly speculative evidence of uncharged bad acts (CPL 470.05 [2]). In any event, although the prosecutor should have obtained an advance ruling on the admissibility of that testimony (see, People v Ventimiglia, 52 NY2d 350), we conclude that any error was harmless (see, People v Crimmins, 36 NY2d 230, 242; People v Croft, 176 AD2d 1225; People v Charleston, 175 AD2d 602, lv denied 78 NY2d 1126). In our view, the probative value of such evidence outweighed the risk of prejudice to defendant (see, People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, supra, at 359-360). (Appeal from Judgment of Erie County Court, D’Amico, J. — Assault, 2nd Degree.) Present — Callahan, J. P., Boomer, Balio, Lawton and Davis, JJ.

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— Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). The conviction arises out of an altercation between defendant and an acquaintance in defendant’s residence. During the brief scuffle, the victim sustained a severe laceration to his head which required suturing at a local hospital. Defendant maintained that he struck the victim only with his fists, while the victim testified that he was hit on the head with a wooden table leg.

Defendant contends that the trial court committed reversible error by allowing the prosecutor to cross-examine defendant’s brother regarding his failure to come forward with potentially exculpatory information prior to trial. The People may lay a foundation for such questioning by demonstrating that the witness: (1) was aware of the nature of the charges pending against the defendant; (2) had reason to recognize that he possessed exculpatory information; (3) had a reasonable motive for acting to exonerate the defendant; and (4) was familiar with the means to make the information available to law enforcement authorities (see, People v Dawson, 50 NY2d 311, 321, n 4). In our view, County Court abided by the [1030]*1030conditions and safeguards enunciated in People v Dawson (supra) and the impeachment evidence was properly admitted.

Defendant has not preserved his claim that he was denied a fair trial by the prosecutor’s conduct in eliciting improper and highly speculative evidence of uncharged bad acts (CPL 470.05 [2]). In any event, although the prosecutor should have obtained an advance ruling on the admissibility of that testimony (see, People v Ventimiglia, 52 NY2d 350), we conclude that any error was harmless (see, People v Crimmins, 36 NY2d 230, 242; People v Croft, 176 AD2d 1225; People v Charleston, 175 AD2d 602, lv denied 78 NY2d 1126). In our view, the probative value of such evidence outweighed the risk of prejudice to defendant (see, People v Alvino, 71 NY2d 233, 241-242; People v Ventimiglia, supra, at 359-360). (Appeal from Judgment of Erie County Court, D’Amico, J. — Assault, 2nd Degree.) Present — Callahan, J. P., Boomer, Balio, Lawton and Davis, JJ.

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181 A.D.2d 1029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccleary-nyappdiv-1992.

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