People v Ocasio (Luis)

[*1] People v Ocasio (Luis) 2018 NY Slip Op 50486(U) Decided on April 6, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2014-1368 K CR

The People of the State of New York, Respondent,

against

Luis Ocasio, Appellant.

Alan Ross, for appellant. Kings County District Attorney (Leonard Joblove, Sholom J. Twersky and Daniel Berman of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Geraldine Pickett, J.), rendered March 28, 2014. The judgment convicted defendant, after a nonjury trial, of attempted criminal possession of a controlled substance in the seventh degree and unlawful possession of marihuana.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an accusatory instrument with two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), resisting arrest (Penal Law § 205.30), and unlawful possession of marihuana (Penal Law § 221.05). Upon application of the People, the court reduced the two counts of criminal possession of a controlled substance in the seventh degree to attempted criminal possession of a controlled substance in the seventh degree (Penal Law §§ 110.00, 220.03) and dismissed the count of resisting arrest. Prior to trial, the People made a motion in limine to preclude defendant from cross-examining the arresting officer about two federal civil lawsuits in which he had been named a defendant. The Criminal Court (Gilbert C. Hong, J.), noting that defendant had not submitted opposition papers, granted the motion in limine in part and denied it in part, ruling that defendant would not be [*2]permitted to question the arresting officer about a lawsuit (the Washington lawsuit) in which it had been alleged that he and another officer had arrested the plaintiff on a mental health warrant and brought the plaintiff therein to be committed at a hospital, even though the warrant issued by the Supreme Court had directed them to transport her to court for examination, as the matter did not "impugn on [the officer's] character or veracity" and because the matter was still "under consideration." However, the court further ruled that defendant would be permitted the cross-examine the officer about a second lawsuit in which it had been alleged that he and another officer had falsely arrested the plaintiff therein, unlawfully searched him, and falsely charged him with drug offenses, as the allegations contained therein would directly reflect on the officer's character and credibility, but that the questioning would be limited to the underlying facts of that matter, with the "specific parameters" of questioning to be decided by the trial court.

Following a nonjury trial, at which two police officers, including the arresting officer, testified, the Criminal Court found defendant guilty of one of the two counts of attempted criminal possession of a controlled substance in the seventh degree and of unlawful possession of marihuana, and sentenced him to time served. The sole contention raised by defendant on appeal is that his attorney should have been permitted to cross-examine the arresting officer about the Washington lawsuit.

The doctrine of preservation precludes appellate review, as a matter of law, of any ruling made by the court of original instance unless a protest was made to the ruling, by the party claiming error, to alert the court to the party's argument and specific objection (see CPL 470.05 [2]; People v Becoats, 17 NY3d 643 [2011]; People v Ford, 66 NY2d 428 [1985]; People v Thomas, 50 NY2d 467 [1980]), so as to give the court the opportunity to effectively change its ruling (see People v Walker, 71 NY2d 1018, 1020 [1988]; People v Strudwick, 178 AD2d 947 [1991]; People v Alleyne, 154 AD2d 473 [1989]; People v Udzinski,146 AD2d 245 [1989]). Therefore, where, as here, a defendant fails to oppose the People's motion in limine and does not take exception to the court's ruling or raise the issue before the trial court, no protest sufficient to preserve the issue has been registered (see People v Khan, 127 AD3d 1250 [2015]; People v Joslyn, 103 AD3d 1254 [2013]; People v Lindstadt, 174 AD2d 696 [1991]; People v Paul, 139 AD2d 916 [1988]). Consequently, defendant's claim that the trial court unfairly limited the cross-examination of the arresting officer is unpreserved for appellate review (see People v Malizia, 62 NY2d 755, 757-758 [1984]; People v Cortez, 81 AD3d 742 [2011]; People v Maxis, 50 AD3d 922 [2008]; People v Odiot, 242 AD2d 308 [1997]; People v McDonald, 186 AD2d 11 [1992]), and we decline to review the issue in the interest of justice.

Accordingly, the judgment of conviction is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018