PEOPLE v. CARRION

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Ramoncito CARRION, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Thomas J. Cocuzzi, Rochester, for Defendant-Appellant. Elizabeth Clifford, Rochester, for Plaintiff-Respondent.

 Defendant contends that, by restricting his cross-examination of a prosecution witness, County Court precluded him from offering evidence of his innocence and thereby denied him a fair trial.   That contention is not preserved for our review because the stated purpose of that cross-examination was the impeachment of the witness's credibility (see, CPL 470.05[2];  People v. Odiot, 242 A.D.2d 308, 308-309, 661 N.Y.S.2d 969, lv. denied 91 N.Y.2d 877, 668 N.Y.S.2d 576, 691 N.E.2d 648;  People v. Dunbar, 145 A.D.2d 501, 501-502, 535 N.Y.S.2d 438).  In any event, defendant was not thereby denied a fair trial.   Defendant attempted to impeach the witness with evidence of a prior crime that was charged in City Court.   That charge was dismissed on procedural grounds, and the People were unable to re-prosecute because the alleged victim refused to cooperate.   Under those circumstances, it was not an abuse of discretion for the court to preclude questioning concerning that alleged crime without “something other than the deposition of the alleged victim of that incident” as proof of its commission (see, People v. Caviness, 38 N.Y.2d 227, 232, 379 N.Y.S.2d 695, 342 N.E.2d 496;  see also, People v. Steele, 168 A.D.2d 937, 938, 565 N.Y.S.2d 339, lv. denied 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589).

Judgment unanimously affirmed.

MEMORANDUM: