PEOPLE v. VANKENIE

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Raymond VANKENIE, appellant.

Decided: June 24, 2008

WILLIAM F. MASTRO, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and JOHN M. LEVENTHAL, JJ. Steven Banks, New York, N.Y. (Natalie Rea of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered July 14, 2006, convicting him of attempted assault in the second degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the trial court providently exercised its discretion in precluding the testimony of a detective investigator regarding a complainant's purported motive to fabricate.   While proof tending to establish a motive to fabricate is never collateral and may not be excluded on that ground, such proof may be excluded when, as here, it is too remote and speculative (see People v. Monroe, 30 A.D.3d 616, 617, 817 N.Y.S.2d 150;  People v. Sawyer, 304 A.D.2d 775, 776, 757 N.Y.S.2d 766;  People v. Hoover, 298 A.D.2d 599, 750 N.Y.S.2d 304).

 The defendant's contention, in effect, that the jury's verdict was repugnant is unpreserved for appellate review (see CPL 470.05[2];  People v. Romgobind, 40 A.D.3d 1133, 837 N.Y.S.2d 274;  People v. Brown, 38 A.D.3d 676, 677, 831 N.Y.S.2d 510).   In any event, the verdict was not repugnant since the acquittal on the counts of attempted murder in the second degree, attempted assault in the first degree, and a third count of attempted assault in the second degree did not negate any of the elements of criminal possession of a weapon in the second degree (see People v. Brown, 38 A.D.3d at 677, 831 N.Y.S.2d 510;  People v. Smith, 23 A.D.3d 416, 417, 804 N.Y.S.2d 774;  People v. Gatling, 222 A.D.2d 606, 635 N.Y.S.2d 273).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt of criminal possession of a weapon in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).

Copied to clipboard