THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MAKESHA JIMMESON DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MAKESHA JIMMESON, DEFENDANT–APPELLANT.

KA 08–01359

Decided: December 21, 2012

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN 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 her, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that Supreme Court erred in refusing to permit her to present evidence of a prior altercation involving defendant and the victim to demonstrate the character of defendant as well as that of the victim.   We reject that contention.   Character evidence “ ‘is strictly limited to testimony concerning the [party's] reputation’ “ in the community (People v. Mancini, 213 A.D.2d 1038, 1039, lv denied 85 N.Y.2d 976;  see People v. Kuss, 32 N.Y.2d 436, 443, rearg. denied 33 N.Y.2d 644, cert denied 415 U.S. 913), and thus “a character witness may not testify to specific acts” in order to establish character (Mancini, 213 A.D.2d at 1039;  see People v. Ciccone, 90 AD3d 1141, 1144, lv denied 19 NY3d 863).   The court also properly refused to allow defendant to present evidence of the prior altercation in order to impeach the trial testimony of two prosecution witnesses.  “It is well established that the party who is cross-examining a witness cannot ․ call other witnesses to contradict a witness' answers concerning collateral matters solely for the purposes of impeaching that witness' credibility” (People v. Pavao, 59 N.Y.2d 282, 288–289;  see People v. Caswell, 49 AD3d 1257, 1258, lv denied 11 NY3d 735).   Finally, defendant failed to preserve for our review her present contention that evidence of the prior altercation was admissible to establish that she did not have a motive to assault the victim and that the two prosecution witnesses had a motive to fabricate their trial testimony (see CPL 470.05[2];  People v. Coapman, 90 AD3d 1681, 1683, lv denied 18 NY3d 956).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Frances E. Cafarell

Clerk of the Court