PEOPLE v. ORTEGA (2002)

 Supreme Court erred in granting defendant's motion to set aside the verdict pursuant to CPL 330.30(1).   Contrary to defendant's contention, the court properly limited the cross-examination of the nine-year-old victim at trial and thus erred in thereafter concluding that its prior ruling was erroneous and in setting aside the verdict on that ground.   Evidence that might establish the bias, hostility or interest of a witness is “generally admissible as relevant to the jury's consideration of that witness's credibility” (People v. Shairzai, 215 A.D.2d 259, 263, 627 N.Y.S.2d 347, lv. denied 86 N.Y.2d 802, 632 N.Y.S.2d 515, 656 N.E.2d 614).   “ [E]xtrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground” (People v. Hudy, 73 N.Y.2d 40, 56, 538 N.Y.S.2d 197, 535 N.E.2d 250).   On the other hand, “a court may, in the exercise of discretion, properly exclude such proof when it is too remote or speculative” (People v. Retzer, 245 A.D.2d 1132, 667 N.Y.S.2d 534, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 856, 695 N.E.2d 725;  see, People v. Wronski, 277 A.D.2d 999, 999-1000, 716 N.Y.S.2d 512;  People v. Cullen, 236 A.D.2d 808, 653 N.Y.S.2d 747, lv. denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622;  People v. Stewart [Vance], 188 A.D.2d 626, 627, 591 N.Y.S.2d 483, lv. denied 81 N.Y.2d 977, 598 N.Y.S.2d 778, 615 N.E.2d 235).   “[C]ross-examination aimed at establishing a possible reason to fabricate must proceed upon some good-faith basis” (People v. Barney, 277 A.D.2d 460, 715 N.Y.S.2d 758, lv. denied 96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205;  see, People v. Perry, 203 A.D.2d 131, 611 N.Y.S.2d 3, lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 23, 639 N.E.2d 763;  People v. Stewart, supra, at 627, 591 N.Y.S.2d 483).

Here, defendant sought to cross-examine the victim concerning an altercation between her father and defendant.   The altercation occurred after the victim had revealed to her mother and the police incidents of sexual abuse involving defendant, but before she testified before the Grand Jury and at trial.   Defendant's contention that the victim's observation of the altercation induced the victim to “stick to her story” during her Grand Jury and trial testimony is “purely speculative and lacked any factual basis” (People v. Barney, supra, at 460, 715 N.Y.S.2d 758).   We therefore reverse the order, deny the motion, reinstate the verdict and remit the matter to Supreme Court for sentencing.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law, the motion is denied, the verdict is reinstated and the matter is remitted to Supreme Court for sentencing.

MEMORANDUM: