THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TOMMY WASHINGTON DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TOMMY L. WASHINGTON, DEFENDANT–APPELLANT.

KA 07–01267

Decided: November 18, 2011

PRESENT:  FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ. LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ), gang assault in the second degree (§ 120.06) and assault in the second degree (§ 120.05[2] ).   Defendant contends that he was denied a fair trial based on the prosecutor's improper questions on cross-examination concerning whether the prosecution witnesses were lying or were liars.   That contention is not preserved for our review inasmuch as defendant failed to object to those questions (see CPL 470.05[2] ), and we decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We note, however, that such questions were improper (see People v. Paul, 229 A.D.2d 932;  People v. Paul, 212 A.D.2d 1020, 1021, lv denied 85 N.Y.2d 912;  People v. Edwards, 167 A.D.2d 864, lv denied 77 N.Y.2d 877).   As this Court stated over 20 years ago, “[o]n numerous occasions, we have forcefully condemned prosecutorial cross-examination which compels a defendant to state that witnesses lied in their testimony” (People v. Eldridge, 151 A.D.2d 966, 966, lv denied 74 N.Y.2d 808).   Unfortunately, we find it necessary once again to forcefully condemn such improper conduct by the prosecutor.

Defendant's challenge to the legal sufficiency of the evidence is also unpreserved for our review because defendant made only a general motion for a trial order of dismissal that was not based on the grounds set forth on appeal (see People v. Gray, 86 N.Y.2d 10, 19;  People v. Clark, 42 AD3d 957, 958, lv denied 9 NY3d 960).   In any event, that challenge is lacking in merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).   We reject defendant's further contention that he was denied effective assistance of counsel.   Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147).   We have considered defendant's remaining contentions and conclude that they are lacking in merit.

Patricia L. Morgan

Clerk of the Court