PEOPLE v. CHEESEBORO (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10[2][b] ), arising from an incident in which he stole cash from a taxi driver while displaying what appeared to be a gun.  We reject defendant's contention that Supreme Court erred in precluding him from impeaching the victim with evidence that the victim did not tell the first police officer to whom he spoke after the robbery that defendant said that he would kill the victim and take his vehicle.  In the absence of evidence that the victim signed, prepared, or verified the accuracy of the first officer's police report, any statements in that report that were attributed to the victim were not admissible in evidence as prior inconsistent statements made by the victim (see People v. Bernardez, 85 A.D.3d 936, 937, 925 N.Y.S.2d 604 [2d Dept. 2011], lv denied 17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [2011];  see also People v. White, 272 A.D.2d 239, 240, 707 N.Y.S.2d 456 [1st Dept. 2000], lv denied 95 N.Y.2d 940, 721 N.Y.S.2d 616, 744 N.E.2d 152 [2000] ).  We note that defendant did not attempt to introduce in evidence the victim's signed statement or to present testimony about prior inconsistent statements or omissions of fact by the victim from the officer who interviewed the victim after the robbery and took the victim's signed statement.

Defendant's further contention that the court's determination to preclude that impeachment evidence combined with the prosecutor's comments during summation denied him a fair trial is unpreserved for our review (see People v. Carrasquillo, 142 A.D.3d 1359, 1359, 38 N.Y.S.3d 340 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Smith, 129 A.D.3d 1549, 1549–1550, 10 N.Y.S.3d 374 [4th Dept. 2015], lv denied 26 N.Y.3d 971, 18 N.Y.S.3d 608, 40 N.E.3d 586 [2015] ).  Finally, the sentence is not unduly harsh or severe.