PEOPLE v. CAMPBELL (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered November 9, 2007, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant contends that the prosecutor's questioning about his post-arrest silence deprived him of a fair trial.   However, after the Supreme Court sustained his objection and issued a curative instruction, the defendant failed to either move for further curative instructions or request a mistrial (see People v. Wright, 40 A.D.3d 1021, 837 N.Y.S.2d 217;  People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276;  cf. People v. Prince, 36 A.D.3d 833, 831 N.Y.S.2d 182).   Under these circumstances, “it must be deemed that the matter was cured to defense counsel's satisfaction, and thus the defendant's present contention is unpreserved for appellate review” (People v. Thompson, 34 A.D.3d 852, 854, 824 N.Y.S.2d 682).   In any event, the instruction given by the court adequately cured any prejudice to the defendant.

The Supreme Court providently exercised its discretion in permitting the People to call a rebuttal witness (see CPL 260.30[7] ), since the witness's testimony was relevant to a material issue in the case (see People v. Carroll, 95 N.Y.2d 375, 386, 718 N.Y.S.2d 10, 740 N.E.2d 1084;  see also People v. Ferguson, 15 A.D.3d 675, 790 N.Y.S.2d 237;  People v. Wilson, 297 A.D.2d 298, 745 N.Y.S.2d 921).

 The Supreme Court's justification charge was adequate to instruct the jury on the relevant principles of the law (see Penal Law § 35.15[2][a];  People v. Wesley, 76 N.Y.2d 555, 561 N.Y.S.2d 707, 563 N.E.2d 21;  People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41;  see also CJI2d[NY] Penal Law § 35.15).   Further, “[t]he court need not marshal the evidence except to the extent necessary to explain the application of the law to the facts of the case, and is not required to explain all the contentions of the parties or outline all the inconsistencies in the evidence” (People v. Gallardo, 58 A.D.3d 867, 867, 873 N.Y.S.2d 106;  see CPL 300.10[2];  People v. Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 474 N.E.2d 610).

 The Supreme Court's interested witness charge properly identified the defendant as an example of an interested witness and permitted the jury to consider whether any witness's interest or lack of interest in the outcome of the case affected the truthfulness of such witness's testimony (see People v. Brokenbough, 52 A.D.3d 525, 859 N.Y.S.2d 678;  People v. Blake, 39 A.D.3d 402, 403, 835 N.Y.S.2d 78).   The interested witness charge given to the jury in this case “contained no language stating that the defendant had ‘a motive to lie or deep personal interest in the case,’ and nothing in the charge assumed or suggested that he was guilty or shifted the burden of proof” (People v. Brokenbough, 52 A.D.3d at 525, 859 N.Y.S.2d 678;  see People v. Blake, 39 A.D.3d at 403, 835 N.Y.S.2d 78;  cf. People v. Ochs, 3 N.Y.2d 54, 56, 163 N.Y.S.2d 671, 143 N.E.2d 388;  United States v. Gaines, 457 F.3d 238, 242;  United States v. Brutus, 505 F.3d 80, 85).   Moreover, the charge was not unbalanced (see People v. Varughese, 21 A.D.3d 1126, 801 N.Y.S.2d 415;  People v. Lopez, 1 A.D.3d 458, 767 N.Y.S.2d 778).

The Supreme Court providently exercised its discretion in denying the defendant's application for youthful offender status (see CPL 720.20[1];  People v. Stanley, 38 A.D.3d 923, 834 N.Y.S.2d 205).   The sentence imposed was not excessive (see People v. Rivera, 177 A.D.2d 664, 576 N.Y.S.2d 365;  People v. Suitte, 90 A.D.2d 80, 86, 455 N.Y.S.2d 675).