PEOPLE v. RIVERA (2025)

Judgment, Supreme Court, New York County (Neil Ross, J.), rendered July 15, 2019, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender with a prior violent felony offense, to a term of 61/212 years, unanimously affirmed.

The court providently exercised its discretion in precluding defendant from cross-examining a police witness about the existence of two civil lawsuits naming him as a defendant, as neither had resulted in adverse findings against the officer (see People v. Smith, 27 N.Y.3d 652, 662, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016];  People v. Cabrera, 188 A.D.3d 612, 613, 132 N.Y.S.3d 747 [1st Dept. 2020], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 756, 165 N.E.3d 682 [2021]).  The court did not abuse its discretion by permitting defendant to ask the police witness about his alleged participation in an assault and false arrest against the plaintiff in one suit, while precluding inquiry of that same witness into statements allegedly made by a different officer accused in the complaint (see Smith, 27 N.Y.3d at 662, 36 N.Y.S.3d 861, 57 N.E.3d 53).

Defendant's Brady claim regarding an additional lawsuit against this same officer, which was discovered after defendant's conviction, is outside the record before us and unreviewable on his direct appeal (see People v. Teran, 172 A.D.3d 447, 449, 100 N.Y.S.3d 19 [1st Dept. 2019], lv denied 33 N.Y.3d 1109, 106 N.Y.S.3d 655, 130 N.E.3d 1265 [2019]).  Moreover, the record does not reflect that the prosecutor had actual or constructive knowledge of this additional lawsuit before trial and the officer's personal pre-trial knowledge of the allegations could not be imputed to the prosecutor, who had no duty to inquire about the allegations or to search the dockets in every federal or state court in New York for complaints against their police witnesses (People v. Garrett, 23 N.Y.3d 878, 888–891, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014]).

The court properly instructed the jury that defendant was an interested witness (see People v. Agosto, 73 N.Y.2d 963, 967, 540 N.Y.S.2d 988, 538 N.E.2d 340 [1989]).  Defendant failed to preserve the argument that the court was required to explain that the jury could also find the People's witnesses were also interested in the outcome of the trial (see People v. Wilson, 93 A.D.3d 483, 484, 939 N.Y.S.2d 463 [1st Dept. 2012], lv denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 [2012]), and we decline to review it in the interest of justice.  As an alternative holding, we find that the court's instructions “as a whole, adequately conveyed the appropriate standards” (People v. Williams, 174 A.D.2d 494, 495, 571 N.Y.S.2d 272 [1st Dept. 1991], lv denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069 [1991]).

Defendant did not preserve his claims that the prosecutor made improper remarks during summation, and we decline to review those claims in the interest of justice (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  People v. Carlucci, 196 A.D.3d 418, 420, 146 N.Y.S.3d 785 [1st Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 441 [2021]).  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 143, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998]).