People v Shondell Butler

People v Butler 2003 NY Slip Op 20267 [2 AD3d 1457] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Shondell Butler, Appellant. (Appeal No. 1.)

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Appeal from a judgment of Onondaga County Court (Walsh, J.), entered October 23, 2002, convicting defendant after a jury trial of arson in the first degree and intimidating a witness in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of arson in the first degree (Penal Law § 150.20) and two counts of intimidating a witness in the third degree (§ 215.15 [1]), defendant contends that the verdict is against the weight of the evidence. We disagree. "Great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]). We see no basis to disturb the jury's resolution of credibility issues where, as here, there is no basis to conclude that the testimony of any witnesses was incredible as a matter of law.

We reject the contention of defendant that reversal is required based upon certain of County Court's evidentiary rulings. The court properly precluded a police officer from testifying to hearsay statements of a witness she interviewed (see People v Romero, 78 NY2d 355, 361 [1991]) and properly precluded another officer from rendering an opinion on the truthfulness or veracity of the victim (see People v Allen, 222 AD2d 441, 442 [1995], lv denied 88 NY2d 844 [1996]). By failing to raise a specific objection, defendant has failed to preserve for our review his contention that certain testimony of a police officer constituted bolstering (see People v West, 56 NY2d 662, 663 [1982]; People v Alshoaibi, 273 AD2d 871, 872 [2000], lv denied 95 NY2d 960 [2000]). In any event, the testimony of the officer that she would not have ruled out defendant as a suspect had she known certain facts did not constitute bolstering (cf. People v Brown, 262 AD2d 570, 577 [1999], affd 95 NY2d 776 [2000]; People v Milligan, 309 AD2d 950 [2003]; see generally People v Holt, 67 NY2d 819, 821 [1986]). Defendant has failed to brief any specific arguments with respect to his contention that the cross-examination of the victim was hampered and thus has abandoned that contention on appeal (see People v Jansen, 145 AD2d 870, 871 [1988], lv denied 73 NY2d 923 [1989]). We reject defendant's contention that the court erred in precluding defense counsel from questioning an officer about the contents of a written document. The officer who purportedly wrote the document could not authenticate the writing and defense counsel did not pursue any other method of authenticating it (see People v Boswell, 167 AD2d 928 [1990], lv denied 77 NY2d 876; cf. People v Jean-Louis, 272 AD2d 626, 627 [2000], lv denied 95 NY2d 890 [2000]).

Although the prosecutor violated the court's Sandoval ruling, the court sustained defendant's objection and granted defendant's request for curative instructions. Because defendant "neither objected further nor requested a mistrial[,] . . . the curative instruction 'must be deemed to have corrected the error to the defendant's satisfaction' " (People v Williams, 277 AD2d 960, 960 [2000], lv denied 96 NY2d 789 [2001], quoting People v Heide, 84 NY2d 943, 944 [1994]; see People v Trembling, 298 AD2d 890, 892 [2002], lv denied 99 NY2d 540 [2002]). To the extent that defendant contends that a comment by the prosecutor on summation was improper, defendant failed to object to the comment and thus has failed to preserve that contention for our review (see People v Shabazz, 289 AD2d 1059, 1060 [2001], affd 99 NY2d 634 [2003], rearg denied 100 NY2d 556 [2003]; People v Perez, 298 AD2d 935, 937 [2002], lv denied 99 NY2d 562 [2002]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Defendant was afforded a "fair opportunity to question prospective jurors" (People v Johnson, 94 NY2d 600, 616 n [2000]; see People v Jean, 75 NY2d 744, 745 [1989]), and we therefore conclude that the court did not abuse its discretion in imposing reasonable limitations on defense counsel's questioning of those prospective jurors (see People v Vargas, 88 NY2d 363, 377 [1996]). Finally, based upon our review of the record, we reject the contention of defendant that he was denied a fair trial based on cumulative errors (cf. People v LaDolce, 196 AD2d 49, 53 [1994]). Present—Pine, J.P., Wisner, Hurlbutt, Kehoe and Hayes, JJ.