People v Carter

People v Carter 2007 NY Slip Op 06570 [43 AD3d 652] September 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

The People of the State of New York, Respondent,
v
Corey Carter, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Jessica A. Yager of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered October 17, 2005, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fifth degrees and two counts of resisting arrest, and sentencing him, as a second felony offender, to an aggregate term of 5½ to 11 years, unanimously affirmed.

Defendant did not preserve his arguments that the court should have provided an instruction limiting the jury's use of a defense witness's prior written statement, and that the error was compounded by the prosecutor's use of it in summation, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the prosecutor made a permissible argument that the jury should discredit the witness's trial testimony because he made a prior inconsistent statement that was consistent with other witnesses' trial testimony, and that defendant was not prejudiced by the absence of a limiting instruction. Defendant's argument that the court should not have admitted the written statement itself into evidence is also unpreserved, and we likewise decline to review it in the interest of justice. Were we to review this claim, we would find that the court had discretion to permit the jury to examine the written statement, and providently exercised such discretion where the witness claimed the police composed the statement and pressured him to sign it (see People v Piazza, 48 NY2d 151, 164-165 [1979]).

Defendant's "vouching" claim is without merit (see People v Overlee, 236 AD2d 133, 144 [1997], lv denied 91 NY2d 976 [1998]). Defendant's remaining challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. [*2]Were we to review these claims, we would find no basis for reversal.

We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Gonzalez, Sweeny, McGuire and Malone, JJ.