PEOPLE v. MONROE

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

The PEOPLE, etc., respondent, v. Bruce MONROE, appellant.

Decided: June 20, 2006

FRED T. SANTUCCI, J.P., ROBERT A. SPOLZINO, ROBERT A. LIFSON, and JOSEPH COVELLO, JJ. Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Tammy Feman of counsel), for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Jodi A. Danzig, and Sarah Spatt of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.), rendered October 14, 2003, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the Supreme Court deprived him of his right to present a defense by declining to allow him to call a witness of his own choosing is without merit.   Although “[t]he right to present evidence by witnesses of one's own choosing is a fundamental ingredient of due process” (People v. Morales, 125 A.D.2d 605, 606, 509 N.Y.S.2d 658), and proof aimed at establishing a motive to fabricate is never collateral and may not be excluded upon that ground (see People v. Hoover, 298 A.D.2d 599, 750 N.Y.S.2d 304), where such proof lacks a good-faith factual basis (see People v. Sandel, 299 A.D.2d 373, 374, 749 N.Y.S.2d 554), is based solely on hearsay (id.;  People v. Simmons, 170 A.D.2d 15, 23-24, 573 N.Y.S.2d 960), or is too remote or speculative (see People v. Sawyer, 304 A.D.2d 775, 776, 757 N.Y.S.2d 766;  People v. Hoover, supra ), a trial court may, in the exercise of discretion, properly exclude it (see People v. Sawyer, supra;  People v. Sandel, supra;  People v. Hoover, supra;  People v. Esposito, 225 A.D.2d 928, 931, 640 N.Y.S.2d 274;  see also People v. McGlothin, 6 A.D.3d 462, 463, 773 N.Y.S.2d 883).   The proffered testimony of the defendant's guidance counselor concerning the domestic affairs of a witness who had testified against the defendant was sufficiently remote from the issue of that witness's bias or motive to fabricate that the Supreme Court providently exercised its discretion in declining to allow it.

 The defendant is also incorrect in contending that the Supreme Court erred in failing to charge petit larceny as a lesser-included offense of robbery in the first degree.   Although petit larceny is a lesser-included offense of robbery in the first degree (see People v. Smith, 214 A.D.2d 971, 626 N.Y.S.2d 915;  People v. Ramirez, 165 A.D.2d 656, 560 N.Y.S.2d 34;  see also People v. Wedgeworth, 104 A.D.2d 915, 916, 480 N.Y.S.2d 251), there is no reasonable view of the evidence here, even when viewing the evidence in the light most favorable to the defendant, as we must (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225;  People v. Wells, 18 A.D.3d 482, 794 N.Y.S.2d 125;  People v. Moreno, 16 A.D.3d 438, 792 N.Y.S.2d 99), that supports the conclusion that the defendant committed the lesser offense but not the greater (see CPL 300.50;  People v. Asan, 22 N.Y.2d 526, 532-533, 293 N.Y.S.2d 326, 239 N.E.2d 913;  People v. Martin, 305 A.D.2d 427, 428, 759 N.Y.S.2d 176;  People v. Gilliam, 300 A.D.2d 701, 702, 752 N.Y.S.2d 722;  People v. France, 216 A.D.2d 579, 628 N.Y.S.2d 574;  see also People v. Scarborough, 49 N.Y.2d 364, 371, 426 N.Y.S.2d 224, 402 N.E.2d 1127;  People v. Durden, 5 A.D.3d 333, 775 N.Y.S.2d 248;  People v. Williams, 249 A.D.2d 427, 428, 670 N.Y.S.2d 779;  People v. Brown, 243 A.D.2d 363, 663 N.Y.S.2d 539).

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 68 N.E. 112).   Because this case turned on identification and thus the credibility of the witnesses, deference should be given to the jury, which had the opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Bleakley, 69 N.Y.2d 490, 494, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Dutcher, 244 A.D.2d 499, 664 N.Y.S.2d 110), and the jury's determination will not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The contention raised in the defendant's supplemental pro se brief with respect to certain comments made by the prosecutor during summation is unpreserved for appellate review, and in any event, is without merit.   The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

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