THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JERMAINE LESTER DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JERMAINE T. LESTER, DEFENDANT–APPELLANT.

KA 08–00132

Decided: April 29, 2011

PRESENT:  SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that County Court erred in limiting his cross-examination of a prosecution witness.   Defendant failed to preserve that contention for our review (see People v. George, 67 N.Y.2d 817, 818–819;  People v. Rookey, 292 A.D.2d 783, lv denied 98 N.Y.2d 701), and in any event it is without merit.  “It is well settled that [t]he scope of cross-examination is within the sound discretion of the trial court” (People v. Bryant, 73 AD3d 1442, 1443, lv denied 15 NY3d 850 [internal quotation marks omitted] ).   Here, the court did not abuse its discretion because there was no good-faith basis for the question at issue (see People v. Baker, 294 A.D.2d 888, 889, lv denied 98 N.Y.2d 708) and, moreover, the court's refusal to allow defendant to ask the prosecution witness that single question cannot be said to have affected the outcome of the trial (see Bryant, 73 AD3d at 1443).

We further reject defendant's contention that the court erred in permitting an investigating officer to testify concerning an out-of-court statement made by an unidentified witness.   That out-of-court statement was properly admitted because it was offered “not for [its] truth, but for the fact [that it was] made” (People v. Mastin, 261 A.D.2d 892, 894, lv denied 93 N.Y.2d 1022).   As the court properly explained in its limiting instruction to the jury, the testimony of the investigating officer that is challenged by defendant was admitted “for the ‘nonhearsay purpose of completing the narrative of events and explaining police actions' “ (People v. Vazquez, 28 AD3d 1100, 1101, lv denied 9 NY3d 965;  see People v. Tosca, 98 N.Y.2d 660).   In any event, any error with respect to the admission of that testimony is harmless (see Vazquez, 28 AD3d at 1101).

Patricia L. Morgan

Clerk of the Court