SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
October 31, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from judgments of the District Court of Nassau County, First District (Francis D. Ricigliano, J.), rendered June 4, 2010.
People v Trujillo (Janet)
Decided on October 31, 2011
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: MOLIA, J.P., TANENBAUM and LaCAVA, JJ
The judgments convicted defendant, upon jury verdicts, of, respectively, driving while intoxicated per se and reckless driving.
ORDERED that the judgments of conviction are affirmed.
As is relevant to this appeal, defendant was charged, in separate accusatory instruments, with driving while intoxicated per se (Vehicle and Traffic Law § 1192 ), driving while intoxicated (Vehicle and Traffic Law § 1192 ), and reckless driving (Vehicle and Traffic Law § 1212). Following a jury trial, defendant was convicted of driving while intoxicated per se and reckless driving.
Defendant contends that, upon her cross-examination, the prosecutor committed reversible error by forcing her to accuse the prosecution witnesses of lying, and that such questions by the prosecutor amounted to improper bolstering, which shifted the burden of proof. This contention, however, is unpreserved for appellate review as defendant did not object on these specific grounds in the District Court (see CPL 470.05 ; People v West, 56 NY2d 662, 663 ). In any event, reversal is not warranted because the evidence of defendant's guilt, without reference to the cross-examination, was overwhelming and there is no significant probability that, but for any error, the jury would have acquitted defendant (see People v Johnson, 57 NY2d 969, 971 ; People v Crimmins, 36 NY2d 230, 241-242 ; People v Brody, 82 AD3d 784, 785 ). In addition, the prosecutor did not shift the burden of proof by asking defendant if the People's witnesses had lied. Finally, defendant created a credibility issue. In order to resolve the competing factual claims, creating the credibility issue, such inquiry on cross examination was warranted (see People v Overlee, 236 AD2d 133, 140 ).
Defendant further contends that the denial of her motions for discovery seeking the personal cell phone records of police officers deprived her of the right to confront the witnesses against her as she was precluded from cross-examining Police Officer Pellegrino about his cell phone use at Central Testing. Pursuant to CPL 255.20, all pre-trial motions must be made within 45 days of arraignment unless the defendant demonstrates good cause for the delay in making the motion. Defendant claims that her 2010 written discovery motion was timely since it was made within 45 days after the charges of driving while intoxicated and reckless driving had been filed against her. However, defendant's argument that cell phone usage interfered with her breath test solely applies to the charge of driving while intoxicated per se (Vehicle and Traffic Law § 1192 ), on which she had been arraigned in 2008. Since defendant did not move for disclosure of the cell phone records in her 2008 and 2009 written motions, and did not provide an explanation for her failure to so move earlier, the District Court properly denied her 2010 written motion as untimely, and properly denied the motion she made during trial for the same relief. Further, having failed to object with any specificity in the District Court that her Sixth Amendment right to confront witnesses against her had been violated (see Crawford v Washington, 541 US 36 ), defendant failed to preserve this issue for appellate review (see People v Bones, 17 AD3d 689, 690 ).
Defendant also contends that the District Court impermissibly allowed the introduction of Police Officer Nicholson's opinion testimony regarding the effect on an Intoxilyzer breath test of nearby cell phone usage, which testimony was used to bolster the People's case. However, since defense counsel "opened the door" by raising the matter of the effect of cell phone usage on the Intoxilyzer device during his cross-examination of Police Officer Nicholson, which matter had not been previously addressed on Police Officer Nicholson's direct examination, the prosecutor properly pursued the matter on redirect examination in order to explain, clarify and fully explore the question which had only been partially examined on cross-examination (see People v Melendez, 55 NY2d 445, 551 ; People v Regina, 19 NY2d 65, 78 ). Such examination did not constitute impermissible bolstering because the prosecutor was merely seeking to fill in the gaps that defense counsel had left during cross-examination (see People v Ochoa, 14 NY3d 180, 186 ).
Defendant's remaining contentions lack merit or are unpreserved for appellate review (see CPL 470.05 ; People v Pringle, 270 AD2d 291 ).
Accordingly, the judgments of conviction are affirmed.
Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: October 31, 2011
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