People v Trinidad

People v Trinidad 2008 NY Slip Op 09449 [57 AD3d 219] December 2, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Robert Trinidad, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (William B. Carney of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Britta Gilmore of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered February 16, 2006, convicting defendant, after a jury trial, of two counts of sexual abuse in the first degree, and sentencing him to concurrent terms of two years, unanimously affirmed.

The prosecutor cross-examined a defense witness about his failure to mention his exculpatory version of the incident to other civilians at the scene who were accusing defendant of misconduct. Defendant's claim that this impeachment required the prosecutor to lay a foundation pursuant to People v Dawson (50 NY2d 311 [1980]) is unpreserved (see People v Miller, 89 NY2d 1077 [1997]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Dawson concerns the impeachment of witnesses by their failure to report exculpatory alibi information to law enforcement authorities, and there is nothing in Dawson or its rationale to suggest that it should be applied to a witness's contacts with other civilians. To the extent defendant is arguing that the cross-examination of this witness or the prosecutor's summation asserted that the witness subsequently failed to bring his exculpatory information to the attention of law enforcement, defendant's claims are unsupported by the record.

We have considered and rejected defendant's remaining arguments, including those related to the court's jury charge. Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.