People v Garcia (Ruben)

[*1] People v Garcia (Ruben) 2018 NY Slip Op 51863(U) Decided on December 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2017-1047 S CR

The People of the State of New York, Respondent,

v

Ruben Garcia, Appellant.

Stephen N. Preziosi, for appellant. Suffolk County District Attorney (Timothy P. Finnerty of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, First District (Janine A. Barbera-Dalli, J.), rendered May 25, 2017. The judgment convicted defendant, upon a jury verdict, of sexual misconduct and sexual abuse in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with sexual misconduct (Penal Law § 130.20 [1]) and sexual abuse in the second degree (Penal Law § 130.60 [2]), which charges stemmed from an allegation that defendant had engaged in sexual intercourse with his then-nine-year-old niece without the victim's consent. Following a jury trial, defendant was convicted as charged and thereafter sentenced to one year of incarceration.

Defendant failed to preserve his contention that, by limiting his cross-examination of the victim and her mother concerning the victim's alleged alcohol and drug use and engagement in illegal acts, the District Court deprived him of his constitutional right to confront adverse witnesses, as defendant did not assert a constitutional right to introduce the excluded evidence at trial (see People v Lane, 7 NY3d 888, 889 [2006]; People v Ramsundar, 138 AD3d 892, 892-893 [2016]; People v Simmons, 106 AD3d 1115, 1116 [2013]). In any event, defendant's contention lacks merit. A criminal defendant's right to confront all adverse witnesses through cross-examination is not absolute (see People v Corby, 6 NY3d 231, 234 [2005]; People v Williams, 81 NY2d 303, 313 [1993]; People v Francisco, 44 AD3d 870, 870 [2007]), and the scope of cross-examination is subject to the sound discretion of the trial court (see People v Corby, 6 NY3d at 234; People v Schwartzman, 24 NY2d 241, 244 [1969]; People v Taylor, 214 AD2d 757, 757 [1995]). "[A] witness may be interrogated upon cross-examination with respect to any immoral, vicious, or criminal acts which may affect his or her character and show the witness to be unworthy of belief, provided the cross-examiner questions the witness in good faith and upon a reasonable basis in fact" (People v Elliot, 127 AD3d 779, 780 [2015] [internal quotation marks, brackets and citation omitted]; see People v Daley, 9 AD3d 601, 602 [2004]). Here, however, [*2]defendant failed to articulate a good faith, nonspeculative basis in fact for his proposed inquiry into the victim's alleged alcohol and drug use and illegal acts (see People v Elliot, 127 AD3d at 780; People v Townsend, 116 AD3d 562, 562 [2014]; People v Olibencia, 45 AD3d 607, 608 [2007]; People v Antonetty, 268 AD2d 254, 254 [2000]). In addition, the probative value of evidence, if any, of the victim's alcohol consumption, which has no direct bearing on the victim's veracity, was outweighed by the danger that the main issues would be obscured and the jury confused (see People v Torres, 289 AD2d 136, 136-137 [2001]; People v Harrell, 209 AD2d 160, 160 [1994], affd 86 NY2d 806 [1995]). Therefore, the court properly exercised its discretion in limiting defendant's cross-examination of the witnesses.

Defendant likewise failed to preserve his contention that the court denied him a fair trial by precluding him, on the ground of hearsay, from questioning an investigation detective as to whether the detective had been told by the victim that she had been sexually abused one time by defendant when there was evidence that the victim had told others that she had been abused multiple times by defendant (see People v Lane, 7 NY3d at 889; People v Lopez, 82 AD3d 1264, 1264 [2011]). Were we to review the issue, we would agree that defendant's proposed inquiry should not have been precluded on the ground of hearsay because any testimony elicited from the detective would have been offered not for the truth of the matter asserted but, rather, to establish whether that statement had in fact been made by the victim (see People v Davis, 58 NY2d 1102, 1103 [1983]). However, defendant was afforded the opportunity to conduct an effective cross-examination of the victim regarding the total number of sexual abuse incidents she had told different persons about, and, in so doing, challenge the victim's credibility. Moreover, the testimony that defendant intended to elicit from the detective was merely cumulative of the victim's testimony, elicited upon cross-examination, that she had told the detective about only one incident. Therefore, defendant was not prejudiced by the limitation imposed by the court and was not deprived of a fair trial thereby (see People v Smith, 147 AD3d 1527, 1530 [2017]; People v Shields, 100 AD3d 549, 550 [2012]; People v Panchon, 93 AD3d 446, 447 [2012]).

Similarly unavailing is defendant's contention that the court erred in precluding defense counsel from questioning defendant's daughter as to whether defendant had ever asked her to face the wall and then proceeded to rape the victim, and in denying defendant's request to call a witness who would have testified that the witness had been informed of the same incident by the victim's mother. Defendant argues that such evidence would have revealed that the victim had made inconsistent allegations regarding the total number of sexual abuse incidents that had occurred to her and thus was probative of the victim's credibility. "The trial court has discretion to admit or preclude relevant evidence based on an analysis of its probative value versus whether it confuses the main issues and misleads the jury" (People v Petty, 7 NY3d 277, 286 [2006] [citations omitted]; see People v Davis, 43 NY2d 17, 27 [1977]). Here, defendant had already elicited testimony from the victim tending to suggest that the victim had made inconsistent allegations regarding the total number of sexual abuse incidents that had occurred to her, and, thus, the evidence defendant sought to introduce would have been cumulative (see People v Petty, 7 NY3d at 286-287; People v Thomas, 151 AD2d 996, 996 [1989]). Moreover, the limited probative value of the evidence was outweighed by the danger that it would obscure the main issue in this case, i.e., whether the incident in question had actually occurred, and mislead the jury (see People v Petty, 7 NY3d at 286-287; People v Rosado, 53 AD3d 455, 456 [2008]; [*3]People v Thomas, 151 AD2d at 996).

Further, defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during her summation is unpreserved for our review because most of the remarks at issue went unchallenged at trial, one was met with only a general one-word objection, and another one was untimely raised in a postsummations mistrial motion (see CPL 470.05 [2]; People v Romero, 7 NY3d 911, 912 [2006]). In any event, the challenged remarks either constituted a fair response to defense counsel's summation or otherwise do not warrant reversal (see People v Galloway, 54 NY2d 396, 401 [1981]; People v Wright, 110 AD3d 836, 837 [2013]). Moreover, any prejudicial effect of the challenged remarks was diluted by the court's instruction to the jury that the remarks of counsel were not evidence, an admonition the jurors are presumed to have followed (see People v Michael, 52 Misc 3d 142[A], 2016 NY Slip Op 51196[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

There was no error in the court's denial of defendant's application for a missing witness charge with respect to a nurse who had performed a physical examination of the victim after the incident. It is well established that a party seeking a missing witness charge must show that "the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case[,] that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party" (People v Gonzalez, 68 NY2d 424, 427 [1986]; accord People v Davydov, 144 AD3d 1170, 1172-1173 [2016]; see People v Hall, 18 NY3d 122, 131 [2011]; People v Marsalis, 22 AD3d 866, 868 [2005]). Here, defendant argued that the nurse, if called, would have testified that the examination failed to reveal any physical evidence of sexual abuse. However, this testimony would have been merely cumulative to that of the investigation detective, who testified that there was no physical evidence of sexual abuse collected from the victim (see People v Jackson, 151 AD3d 1466, 1469 [2017]; People v Azizian, 46 Misc 3d 145[A], 2015 NY Slip Op 50211[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Furthermore, defendant failed to demonstrate that the nurse was in the control of the People, i.e., that there was such a relationship, in legal status or on the facts, between the nurse and the prosecution as to make it natural to expect the nurse to testify favorably to the People and adversely to defendant (see People v Gonzalez, 68 NY2d at 429; People v Turner, 73 AD3d 1282, 1284 [2010]; People v Rosario, 178 AD2d 242, 243 [1991]).

Defendant was also not deprived of a fair trial by the court's jury charge with respect to the testimony of an expert witness. It is well settled that, in reviewing a challenged jury instruction, appellate courts "view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal," and "reversal is only appropriate if the charge, read as a whole against the background of the evidence produced at the trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision" (People v Valentin, 29 NY3d 57, 61 [2017] [internal quotation marks and ellipsis omitted]; see People v Medina, 18 NY3d 98, 104 [2011]; People v Lewie, 17 NY3d 348, 363 [2011]; People v Smith, 16 NY3d 786, 788 [2011]). Here, in instructing the jury about expert testimony, the District Court used the standard jury charge regarding experts provided by the Criminal Jury Instructions (see CJI2d[NY] Expert Witness; People v Gregory, 78 AD3d 1246, 1247 [2010]). We are satisfied that the minor error in the court's charge here created no significant risk of confusion. We find [*4]that the charge, taken as a whole, conveyed the correct standard to be employed with respect to an expert's testimony (see People v Jeffrey, 164 AD3d 604, 605 [2018]; People v Cutting, 150 AD3d 873, 876 [2017]; People v Rosario, 103 AD3d 671, 672 [2013]; People v Dell'Aera, 84 AD3d 1109, 1110 [2011]; People v Gregory, 78 AD3d at 1247-1248).

Finally, defendant's sentence was not harsh or excessive. While defendant had no prior criminal history, in view of the young age of the victim, the heinous nature of the crime and defendant's complete lack of remorse, we discern no extraordinary circumstances or an abuse of discretion that would warrant modification of the court's imposition of the maximum permitted sentence (see People v Gooley, 156 AD3d 1231, 1234 [2017]; People v Adams, 135 AD3d 1154, 1158 [2016]; People v Balacky, 203 AD2d 471, 471 [1994]).

Accordingly, the judgment of conviction is affirmed.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018