PEOPLE v. BRYAN (2025)

Judgment, Supreme Court, New York County (Michelle Rodney, J.), rendered May 20, 2021, convicting defendant, after a jury trial, of two counts of perjury in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

Defendant failed to preserve his claims that the prosecutor's testimony usurped the role of the trial jury and signaled that the indictment was evidence of defendant's guilt.  Defense counsel failed to raise an objection on those grounds during the prosecutor's testimony (see People v. Tevaha, 84 N.Y.2d 879, 881, 620 N.Y.S.2d 786, 644 N.E.2d 1342 [1994]), and did not object to the court's curative instruction that the indictment was only an accusation and was not evidence (see People v. Govan, 226 A.D.3d 522, 523, 208 N.Y.S.3d 598 [1st Dept. 2024], lv denied 42 N.Y.3d 1020, 221 N.Y.S.3d 492, 246 N.E.3d 935 [2024]).  We decline to reach these claims in the interest of justice.  As an alternative holding, we find that the court providently exercised its discretion in admitting the prosecutor's testimony to explain the grand jury process and why defendant had a motive to lie.  The prosecutor never testified that the indictment implied defendant's guilt (cf.  People v. Sandy, 115 A.D.2d 27, 33, 499 N.Y.S.2d 75 [1st Dept. 1986]).  In any event, any error involving the prosecutor's testimony was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  see e.g. People v. Greene, 213 A.D.3d 418, 419, 183 N.Y.S.3d 33 [1st Dept. 2023], mod 41 N.Y.3d 950, 207 N.Y.S.3d 467, 231 N.E.3d 413 [2024]).

The trial court providently exercised its discretion in precluding the defense from inquiring about a disciplinary incident involving the Macy's store detective who observed defendant and an accomplice on surveillance video in the store's Polo section (see People v. Smith, 27 N.Y.3d 652, 660, 36 N.Y.S.3d 861, 57 N.E.3d 53 [2016]).  This line of inquiry was “collateral” and “likely to cause confusion and speculation on the part of the jury” (People v. Smith, 303 A.D.2d 206, 206, 755 N.Y.S.2d 600 [1st Dept. 2003], lv denied 100 N.Y.2d 543, 763 N.Y.S.2d 9, 793 N.E.2d 423 [2003]).  Moreover, any error was harmless because there is no significant probability that the jury would have acquitted defendant had the court permitted testimony about the store detective's disciplinary record (see People v. Watson, 163 A.D.3d 855, 861, 81 N.Y.S.3d 449 [2d Dept. 2018], lv denied 32 N.Y.3d 1009, 86 N.Y.S.3d 767, 111 N.E.3d 1123 [2018]).

Defendant failed to preserve his claim that the perjury counts were multiplicitous (see People v. Alfaro, 85 A.D.3d 686, 687, 926 N.Y.S.2d 94 [1st Dept. 2011], affd 19 N.Y.3d 1075, 955 N.Y.S.2d 826, 979 N.E.2d 1152 [2012]), and we decline to review it in the interest of justice.