PEOPLE v. FERGUSON

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

The PEOPLE, etc., respondent, v. Aaron FERGUSON, appellant.

Decided: February 28, 2005

GABRIEL M. KRAUSMAN, J.P., WILLIAM F. MASTRO, REINALDO E. RIVERA, and PETER B. SKELOS, JJ. Lynn W.L. Fahey, New York, N.Y. (Mae C. Quinn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jill Gross-Marks of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered February 25, 2003, convicting him of murder in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's claim that the prosecutor engaged in misconduct during the cross-examination of one of his witnesses is largely unpreserved for appellate review (see People v. Hobbs, 1 A.D.3d 610, 767 N.Y.S.2d 665;  People v. Hunte, 276 A.D.2d 717, 714 N.Y.S.2d 331;  People v. Green, 272 A.D.2d 341, 708 N.Y.S.2d 304).   In any event, the defendant was not deprived of a fair trial by the allegedly improper conduct (see People v. Hunte, supra;  People v. Green, supra).

 The defendant failed to demonstrate a substantial likelihood of prejudice when one of the prosecutors testified in rebuttal, solely to authenticate an audiotape of a conversation with a defense witness (see People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S.2d 119, 429 N.E.2d 797;  People v. Cannady, 243 A.D.2d 642, 663 N.Y.S.2d 244;  People v. Strawder, 106 A.D.2d 672, 482 N.Y.S.2d 922;  People v. Lester, 99 A.D.2d 611, 472 N.Y.S.2d 162).

 The defendant's contention that the trial court erred in permitting the People to introduce the audiotape in rebuttal is unpreserved for appellate review (see People v. Bailey, 12 A.D.3d 377, 786 N.Y.S.2d 181, lv. denied 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54;  People v. Maldonado, 212 A.D.2d 808, 624 N.Y.S.2d 849).   In any event, the audiotape was properly admitted since it contradicted the testimony of the defense witness regarding the issue of self-defense.   Although the audiotape tended to impeach the credibility of the witness, it was not collateral, since it related to a material issue in the case (see People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262;  People v. Rosario, 298 A.D.2d 244, 748 N.Y.S.2d 153;  People v. Wilson, 297 A.D.2d 298, 745 N.Y.S.2d 921;  People v. Green, 197 A.D.2d 704, 602 N.Y.S.2d 928).

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