PEOPLE v. BOWEN

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

The PEOPLE, etc., respondent, v. Ako BOWEN, appellant.

Decided: November 24, 2009

WILLIAM F. MASTRO, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ. Steven Banks, New York, N.Y. (William B. Carney of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Shulamit Rosenblum Nemec, and Judith Aarons of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Guidice, J.), rendered February 21, 2008, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the trial court deprived him of his right to present a defense by prospectively excluding testimony of two defense witnesses is without merit.  “[A]n accused's right to cross-examine witnesses and present a defense is not absolute” (People v. Williams, 81 N.Y.2d 303, 313, 598 N.Y.S.2d 167, 614 N.E.2d 730).  “It is well established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” (People v. Hudy, 73 N.Y.2d 40, 56, 538 N.Y.S.2d 197, 535 N.E.2d 250;  see People v. Carroll, 95 N.Y.2d 375, 385, 718 N.Y.S.2d 10, 740 N.E.2d 1084;  People v. Cancel, 176 A.D.2d 748, 575 N.Y.S.2d 92).   The trial court has wide latitude to exclude evidence that is “repetitive, only marginally relevant or poses an undue risk of ․ confusion of the issues” (Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [internal quotation marks omitted] ).   Under the circumstances of this case, the trial court providently exercised its discretion in excluding the proffered testimony because it was repetitive and collateral, and posed an undue risk of confusion of the issues (see People v. DeBerry, 17 A.D.3d 480, 792 N.Y.S.2d 343;  People v. Celifie, 287 A.D.2d 465, 466, 730 N.Y.S.2d 884;  People v. Cancel, 176 A.D.2d 748, 575 N.Y.S.2d 92;  see also People v. Young, 295 A.D.2d 631, 745 N.Y.S.2d 177).

 Contrary to the People's argument, the defendant preserved his contentions that the prosecutor made improper remarks during summation and otherwise engaged in misconduct during the trial, because the defendant made his position regarding these objections known to the trial court (see CPL 470.05[2];  cf. People v. Gillespie, 36 A.D.3d 626, 627, 831 N.Y.S.2d 83).   However, the defendant's contentions are without merit.   The challenged remarks and conduct were either responsive to arguments made by defense counsel, constituted fair comment on the evidence, or otherwise did not deprive the defendant of a fair trial (see People v. Dunn, 54 A.D.3d 871, 864 N.Y.S.2d 107;  People v. Olivo, 23 A.D.3d 584, 806 N.Y.S.2d 594).

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