PEOPLE v. DEAN

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Cassandra DEAN, Defendant-Appellant.

Decided: November 15, 2002

Present GREEN, J.P., HAYES, HURLBUTT, BURNS, and GORSKI, JJ. Edward J. Nowak, Public Defender, Rochester (Drew R. Du Brin of Counsel), for Defendant-Appellant. Howard R. Relin, District Attorney, Rochester (Arthur G. Weinstein of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting her after a jury trial of manslaughter in the first degree (Penal Law § 125.20 [1] ).   Defendant contends that County Court improperly limited her cross-examination of a prosecution witness.   We disagree.   The probative value of the testimony that defendant sought to elicit was outweighed by the possibility of unduly prejudicing the People, confusing the issues, or misleading the jury (see People v. Baker, 294 A.D.2d 888, 889, 742 N.Y.S.2d 749;  see generally People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164).   Moreover, defense counsel was afforded considerable latitude in which to cross-examine that prosecution witness concerning her possible motive to kill the victim (see People v. Weiss, 269 A.D.2d 267, 268, 704 N.Y.S.2d 210, lv. denied 94 N.Y.2d 954, 710 N.Y.S.2d 10, 731 N.E.2d 627;  People v. Ayuso, 254 A.D.2d 26, 679 N.Y.S.2d 103, lv. denied 92 N.Y.2d 1028, 684 N.Y.S.2d 493, 707 N.E.2d 448).   We reject the further contention of defendant that the court erred in denying her motion for a mistrial after a police investigator testified at trial to an oral statement made by defendant.   After the suppression hearing, the court concluded that defendant's written statements would be admissible at trial but granted defendant's motion to preclude the oral statement by defendant to a police investigator on the ground that the People had failed to comply with the notice requirement of CPL 710.30.   The court erred in granting defendant's motion to preclude that statement.   Defendant waived preclusion on the ground of lack of notice because she was given a full opportunity to be heard on the voluntariness of that statement at the suppression hearing (see People v. Garcia, 290 A.D.2d 299, 300, 735 N.Y.S.2d 545;  People v. Brown, 281 A.D.2d 700, 701, 728 N.Y.S.2d 100, lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206).   Thus, the court did not abuse its discretion in denying defendant's motion for a mistrial after the police investigator testified at trial concerning that oral statement.   In any event, any error was harmless.   The oral statement did not differ significantly from defendant's written statements, and the court's curative instruction provided an adequate remedy to alleviate any prejudice to defendant (see People v. Arocho, 267 A.D.2d 110, 699 N.Y.S.2d 693, lv. denied 95 N.Y.2d 793, 711 N.Y.S.2d 160, 733 N.E.2d 232;  see also People v. Ventura, 250 A.D.2d 403, 404, 673 N.Y.S.2d 106, lv. denied 92 N.Y.2d 931, 680 N.Y.S.2d 472, 703 N.E.2d 284;  People v. McGriff, 149 A.D.2d 952, 953, 540 N.Y.S.2d 85, lv. denied 74 N.Y.2d 814, 546 N.Y.S.2d 572, 545 N.E.2d 886).   The sentence is not unduly harsh or severe.

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

MEMORANDUM: