PEOPLE v. WILSON (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered August 12, 2015, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the Supreme Court deprived him of his right to present a defense by denying his requests to call a witness of his own choosing and to obtain access to another potential witness is without merit.  “The right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process” (People v. Morales, 125 A.D.2d 605, 606, 509 N.Y.S.2d 658 [internal quotation marks omitted] ), and evidence aimed at establishing a motive to fabricate is never collateral and may not be excluded upon that ground (see People v. Hoover, 298 A.D.2d 599, 750 N.Y.S.2d 304).  However, where such evidence is too remote or speculative, a trial court may, in the exercise of discretion, exclude it (see People v. Monroe, 30 A.D.3d 616, 618, 817 N.Y.S.2d 150;  People v. Buonincontri, 18 A.D.3d 569, 570, 795 N.Y.S.2d 101, affd 6 N.Y.3d 726, 810 N.Y.S.2d 403, 843 N.E.2d 1143;  People v. Hoover, 298 A.D.2d at 599, 750 N.Y.S.2d 304).  Here, the court providently exercised its discretion in denying the defendant's requests (see People v. Vankenie, 52 A.D.3d 849, 850, 862 N.Y.S.2d 59;  People v. Salas, 23 A.D.3d 414, 414, 804 N.Y.S.2d 776;  People v. Peterson, 200 A.D.2d 450, 450, 607 N.Y.S.2d 7).

The defendant's contention that the prosecutor's summation remarks deprived him of a fair trial because they contained misstatements of law, denigrated the defense, and improperly appealed to the jury's sympathies is unpreserved for appellate review (see CPL 470.05[2] ).  The defendant's challenge to the prosecutor's alleged burden-shifting summation comments, raised in the defendant's belated motion for a mistrial, is also unpreserved for appellate review (see People v. Rodney, 96 A.D.3d 880, 880, 946 N.Y.S.2d 245;  People v. Laguer, 235 A.D.2d 495, 495, 652 N.Y.S.2d 998).  In any event, most of these and the other challenged summation remarks were within the broad bounds of permissible rhetorical comment, a fair response to the defendant's summation, or fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281;  People v. Negron, 150 A.D.3d 764, 765, 54 N.Y.S.3d 410;  People v. Williams, 232 A.D.2d 669, 669, 648 N.Y.S.2d 990;  People v. Williams, 144 A.D.2d 403, 403, 533 N.Y.S.2d 789).  To the extent that any remaining challenged remarks were improper, they were not so egregious as to have deprived the defendant of a fair trial (see People v. Coleman, 148 A.D.3d 717, 718, 48 N.Y.S.3d 478;  People v. Williams, 123 A.D.3d 1152, 1152, 997 N.Y.S.2d 499, affd 29 N.Y.3d 84, 52 N.Y.S.3d 266, 74 N.E.3d 649;  People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660).

The defendant's contention that he was deprived of a fair trial due to improper remarks made by the Supreme Court to prospective jurors during voir dire is unpreserved for appellate review (see CPL 470.05[2];  People v. Prokop, 155 A.D.3d 975, 976, 63 N.Y.S.3d 892;  People v. Mason, 132 A.D.3d 777, 779, 17 N.Y.S.3d 768).  Contrary to the defendant's contention, the court's conduct did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Brown, 7 N.Y.3d 880, 881, 826 N.Y.S.2d 595, 860 N.E.2d 55;  People v. Prokop, 155 A.D.3d at 976, 63 N.Y.S.3d 892;  People v. Mason, 132 A.D.3d at 779, 17 N.Y.S.3d 768;  People v. Cunningham, 119 A.D.3d 601, 601–602, 988 N.Y.S.2d 696).  In any event, while we strongly disapprove of the court's conduct in making these inappropriate remarks, under the circumstances of this case, reversal is not warranted (see People v. Prokop, 155 A.D.3d at 976, 63 N.Y.S.3d 892;  People v. Porter, 153 A.D.3d 857, 858, 61 N.Y.S.3d 99;  People v. Gomez, 153 A.D.3d 724, 725, 61 N.Y.S.3d 70;  People v. Dudley, 151 A.D.3d 878, 879, 54 N.Y.S.3d 297;  People v. Sutton, 151 A.D.3d 763, 766, 57 N.Y.S.3d 180).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

CHAMBERS, J.P., COHEN, DUFFY and CONNOLLY, JJ., concur.