People v Schindler (Richard)

[*1] People v Schindler (Richard) 2010 NY Slip Op 50578(U) [27 Misc 3d 127(A)] Decided on March 30, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2009-4 S CR.

The People of the State of New York, Respondent,

against

Richard Schindler, Appellant.

Appeal from a judgment of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), rendered November 24, 2008. The judgment convicted defendant, upon a jury verdict, of forcible touching.

ORDERED that the judgment of conviction is affirmed.

Following a jury trial, defendant was convicted of forcible touching (Penal Law § 130.52). On appeal, defendant argues that the District Court deprived him of his constitutional right to interpose a defense and to present witnesses of his own choosing when it precluded three defense witnesses from testifying and erroneously limited the scope of the testimony of witnesses who did testify. A defendant preserves an exception on constitutional due process or Sixth Amendment grounds by explicitly basing the objection on such principles, that is, aside from mere state law evidentiary grounds (e.g. People v Angelo, 88 NY2d 217, 222 [1996]; People v Milan, 45 AD3d 255, 256 [2007]). Throughout defense counsel's offer of proof and the District Court's rulings thereon, there was no reference to the constitutional principles invoked on this appeal, and, thus, any issues in relation thereto are unpreserved for appellate review (see CPL 470.05 [2]).

With respect to state law issues, we note that the right to present a defense "is not absolute" (People v Williams, 81 NY2d 303, 313 [1993]), nor has a defendant "the right to present testimony free from the legitimate demands of the adversarial system" (id., quoting United States v Nobles, 422 US 225, 241 [1975]). Among those concerns are a proper application of the rules of evidence (People v Carroll, 95 NY2d 375, 385 [2000]) and the appropriate exercise of a trial court's "broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters" (People v Hudy, 73 NY2d 40, 56 [1987]). A trial court has "wide latitude to exclude evidence that is repetitive . . ., only [*2]marginally relevant or poses an undue risk of . . . confusion of the issues'" (People v Bowen, 67 AD3d 1022, 1023 [2009], quoting Crane v Kentucky, 476 US 683, 689-690 [1986]; e.g. Matter of Anthony M., 63 NY2d 270, 283-284 [1984]).

The District Court did not improvidently exercise its discretion in its preclusion or limitation of testimony. The court properly precluded, on hearsay grounds, testimony as to what a witness was told by an out-of-court declarant regarding the content of certain store security video tapes (People v Goldstein, 6 NY3d 119, 127 [2005]). In any event, even were there no hearsay bar, absent proof that the cameras were operating and recording the scene at the time of the offense, the testimony was properly excluded on relevance grounds. Other proposed testimony of this and another witness would have amounted to impeachment of the victim's general credibility on collateral matters (People v Corby, 6 NY3d 231, 234 [2005]), and we cannot say that the court improperly exercised its "broad discretion and wide latitude" to limit such testimony (People v Love, 307 AD2d 528, 532 [2003]). The proposed character evidence did not relate to a community or workplace opinion but was merely the personal opinion of the witness, and did not address traits involved in the conduct alleged to underlie the charge (People v Procanick, 68 AD3d 1756 [2009]; People v Sullivan, 177 AD2d 673 [1991]; see People v Aharonowicz, 71 NY2d 678, 681 [1988]; People v Bouton, 50 NY2d 130, 139 [1980]). Insofar as the excluded testimony implied that the touching was consensual, given that defendant testified that a touching never occurred, the proof would not have had "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would [have had] without the evidence" (People v Davis, 43 NY2d 17, 27 [1977]).

Defendant's remaining claim of error is unpreserved for appellate review (CPL 470.05 [2]).

Accordingly, the judgment of conviction is affirmed.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: March 30, 2010