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People v. Gagot

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 9, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CARLOS GAGOT, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered October 31, 2007, convicting defendant, after a jury trial, of assault in the second degree (three counts) and attempted assault in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 7 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

6919/06

Defendant failed to preserve his arguments that the court improperly interfered with defense counsel's examination of witnesses and improperly denigrated defense counsel (see People v Charleston, 56 NY2d 886, 887-888 [1982]), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. Most of the conduct challenged by defendant on appeal was permissible clarification, and even if some of the court's interventions and comments were inappropriate, they were not so egregious as to deprive defendant of a fair trial (see People v Arnold, 98 NY2d 63, 67 [2002]; People v Moulton, 43 NY2d 944 [1978]; compare People v Retamozzo, 25 AD3d 73 [2005]).

Defendant's testimony on direct examination that he had been a victim of a crime and that he therefore carried a weapon for his own protection clearly opened the door to cross-examination about his gang affiliation (see People v Melendez, 55 NY2d 445, 451-452 [1982]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090409

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