PEOPLE v. FERRERO

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

The PEOPLE of the State of New York, Respondent, v. Oscar FERRERO, Defendant-Appellant.

Decided: January 27, 2005

BUCKLEY, P.J., MAZZARELLI, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (David Rong of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered December 12, 2001, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously affirmed.

 Defendant's claim that, in cross-examining defendant, the prosecutor misrepresented the contents of a videotaped statement by defendant that was not placed in evidence does not warrant reversal.   The court provided sufficient relief by narrowly tailoring the permissible scope of inquiry, and the ensuing cross-examination did not deprive defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 143, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ).

 Without objection, a photograph of the scene was introduced into evidence.   The manner in which the prosecutor used this photograph in examining a witness could not have misled the jury as to the actual position of a certain taxicab at the time of the incident (see People v. Cruz, 5 A.D.3d 190, 773 N.Y.S.2d 392 [2004], lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469 [2004] ).   It was made clear to the jury that a car in the photograph was not the taxi whose position was at issue, and that the depicted vehicle's position did not represent that of the taxicab at the time of the crime.

We perceive no basis for reducing the sentence.