Goldstein & Weinstein, Bronx (David J. Goldstein of
counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Philip Morrow of
counsel), for respondent.
Renwick, J.P., Richter, Manzanet-Daniels, Kahn, Kern, JJ.
Supreme Court, New York County (Daniel P. FitzGerald, J.),
rendered August 15, 2014, convicting defendant, after a jury
trial, of kidnapping in the second degree, and sentencing
him, as a second violent offender, to a term of 15 years,
verdict was supported by legally sufficient evidence and was
not against the weight of the evidence (see People v
Danielson, 9 N.Y.3d 342, 348-349 ). There is no
basis for disturbing the jury's credibility
determinations. The evidence overwhelmingly established that
defendant restrained the victim under the threat of deadly
physical force (see Penal Law §§ 135.00,
135.20; People v Dodt, 61 N.Y.2d 408, 411 ).
Defendant wielded a pistol and repeatedly punched the victim
until he broke his jaw, while preventing him from leaving his
place of business as defendant demanded repayment of a debt.
court providently exercised its discretion in admitting an
audio recording of the incident made by the victim on his
phone. The victim testified that it was a true and accurate
representation of the incident, and that he did not tamper
with or alter the recording before giving it to the People.
This was all the authentication testimony required by law
(see People v Ely, 68 N.Y.2d 520, 527-28 ).
Moreover, two other witnesses, including a defense witness,
confirmed the recording's accuracy. The recording was not
rendered inadmissible by the fact that it did not capture the
entire incident, because the witnesses testified that it did
so for the time that it was recording, and the jury was aware
that it omitted the beginning and end of the incident
(see People v Devers, 82 A.D.3d 1261, 1262 [2d Dept
2011], lv denied 17 N.Y.3d 794');">17 N.Y.3d 794 ; see also
People v Cabrera, 137 A.D.3d 707');">137 A.D.3d 707 [1st Dept 2016], lv
denied 27 N.Y.3d 1129');">27 N.Y.3d 1129 ).
trial marked by lengthy and contentious cross-examinations of
the People's witnesses, the court providently exercised
its discretion when it requested, at one point, that defense
counsel disclose what other areas he wanted to explore during
the remaining cross-examination of the victim. This did not
amount to an improper curtailment of cross-examination in
these circumstances. In any event, the court permitted
inquiry into the areas defense counsel sought to explore.
court also providently exercised its discretion in giving the
jury an instruction that a claim of right was not a defense
to the submitted count of assault in the first degree.
Although no such defense was raised and no such charge was
requested, the evidence suggested that defendant beat and
threatened the victim in an effort to collect a legitimate
debt. Accordingly, this anticipatory instruction was
appropriate for the purpose of avoiding speculation by the
jury (see People v Pagan, 81 A.D.3d 86, 92 [1st Dept
2010], affd 19 N.Y.3d 91');">19 N.Y.3d 91 ; People v
Rodriguez, 52 A.D.3d 399');">52 A.D.3d 399 [1st Dept 2008], lv
denied 11 N.Y.3d 834');">11 N.Y.3d 834 ).
portion of the prosecutor's summation suggesting that the
defense witness had a "motive to fabricate" was a
fair comment on the evidence that was responsive to the
defense summation (see People v Overlee, 236 A.D.2d
133, 136 [1st Dept 1997], lv denied 91 N.Y.2d 976');">91 N.Y.2d 976
remaining contentions concerning the prosecutor's
summation and the court's conduct of the trial are
unpreserved, and we decline to review them in the interest of