People v Ferrara (Carl)

[*1] People v Ferrara (Carl) 2004 NY Slip Op 51055(U) Decided on September 21, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
x

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, NO. 2004-50 S CR DECIDED

against

CARL FERRARA, Appellant. -x

Appeal by defendant from a judgment of the District Court, Suffolk County (L. Donohue, J.), rendered on September 23, 2003, convicting him of assault in the third degree (Penal Law § 120.00 [2]) and menacing in the second degree (Penal Law § 120.14 [1]), and imposing sentence.

Judgment of conviction unanimously affirmed.

Contrary to the People's argument, defense counsel's request for a character witness charge after the jury was sent out of the courtroom to commence deliberations preserved the issue for appellate review (see CPL 470.05 [2]; 300.10 [5]; People v Molina, 243 AD2d 507 [1997]). However, the lower court's failure to give the jury the requested instruction was not reversible error. The court's general instruction, viewed in its entirety, adequately conveyed the appropriate standard to the jury and provided it with sufficient guidance on how to evaluate said testimony (see generally People v Wesley, 76 NY2d 555, 561 [1990]; People v Goetz, 68 NY2d 96 [1986]; People v Martinez, 243 AD2d 732 [1997]). In any event, any error was harmless in view of the overwhelming evidence of guilt (see People v Burkhardt, 143 AD2d 104 [1988]).

Contrary to defendant's contention, the trial court did not err in limiting cross-examination with respect to certain prosecution witnesses. It is well established that the degree of control to be exercised over the nature and extent of cross-examination is a matter addressed to the sound and broad discretion of the trial court (see People v Schwartzman, 24 NY2d 241 [1969]; People v Boyajian, 148 AD2d 740 [1989]). Assuming arguendo that the court's limitation of cross-examination was error, inasmuch as the jury was informed that the complainant and his son each had a prior assault conviction and defense counsel covered some of [*2]the underlying facts of the assault convictions during cross-examination of the complaining witness' son, such error was harmless (see People v Allen, 50 NY2d 898 [1980]).

Finally, we conclude that the hearsay objection to the testimony of the police officer was properly overruled since it was admitted not for its truth, but to provide background information as to how and why the defendant was confronted by the police leading up to his arrest (see People v Tosca, 98 NY2d 660 [2002]; People v Newland, 6 AD3d 330 [2004]). Additionally, to the extent that the defendant challenges the testimony of Gale Ocenasek, a defense witness, it appears that the court sustained defense counsel's objections during the prosecutor's cross-examination and prevented hearsay. Other questions went unanswered by the witness since she lacked the requisite knowledge to provide answers thereto. Moreover, a review of the record establishes that the court permitted the witness to testify as to those matters which were based upon her own personal knowledge of the facts and said testimony cannot be considered hearsay.
Decision Date: September 21, 2004