                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 21, 2016                      106629
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MIGUEL ALCAREZ,
                    Appellant.
________________________________


Calendar Date:    April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                              __________


      Robert W. Linville, Public Defender, Hudson (Michael C.
Howard of counsel), for appellant.

      Paul Czajka, District Attorney, Hudson (Trevor O. Flike of
counsel), for respondent.

                              __________


Mulvey, J.

      Appeal from a judgment of the County Court of Columbia
County (Koweek, J.), rendered January 15, 2014, upon a verdict
convicting defendant of the crimes of burglary in the first
degree and robbery in the first degree.

      In August 2012, police were summoned to a robbery in
progress at the residence of Desiree Graziano. Defendant and
four others, wearing bandanas across their faces and purportedly
wielding a knife and a chisel, entered the residence – where
Graziano and three others were present – demanding to know the
location of the drugs and money secreted therein. When police
arrived, the perpetrators fled in a vehicle, which left the road
and ended up in a pond. Defendant was arrested by police as he
                              -2-                106629

emerged wet from the pond. He was charged with — and ultimately
convicted by a jury of — burglary in the first degree and robbery
in the first degree. He was sentenced to concurrent prison terms
of 12 years, together with postrelease supervision, and now
appeals.

      Defendant argues that County Court unduly restricted his
right to cross-examine witnesses regarding drug-related
activities by Graziano. A criminal defendant is entitled to
conduct "appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness" (Delaware v
Van Arsdall, 475 US 673, 680 [1986]; see People v Hudy, 73 NY2d
40, 56-57 [1988]; People v Alnutt, 101 AD3d 1461, 1465 [2012], lv
denied 21 NY3d 941 [2013], cert denied 571 US ___, 134 S Ct 1035
[2014]). Since, at the time of trial, Graziano still faced
potential drug charges flowing from evidence found by police at
the crime scene, she had a motive to attempt to tailor her
testimony in a manner to curry favor with the prosecution (see
Alford v United States, 282 US 687, 693 [1931]; People v McLeod,
122 AD3d 16, 19-20 [2014]). However, "the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish" (Delaware v Fensterer,
474 US 15, 20 [1985]; accord People v Smith, ___ NY3d ___, ___,
2016 NY Slip Op 05061, *2 [2016]; see People v Wilson, 100 AD3d
1045, 1047 [2012], lv denied 22 NY3d 998 [2013]). The trial
court retains discretion "to restrict cross-examination 'based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation
that is repetitive or only marginally relevant'" (Corby v Artus,
699 F3d 159, 166 [2d Cir 2012], cert denied ___ US ___, 133 S Ct
1287 [2013], quoting Delaware v Van Arsdall, 475 US at 679; see
People v McLeod, 122 AD3d at 19; People v DeFreitas, 116 AD3d
1078, 1081-1082 [2014], lv denied 24 NY3d 960 [2014]; People v
Mestres, 41 AD3d 618, 618 [2007], lv denied 9 NY3d 924 [2007]).

      During the cross-examination of one police officer, defense
counsel elicited from the officer that there had been prior
complaints of drug-related activity at the subject residence and
that those earlier incidents involved Graziano. Several
witnesses testified that the perpetrators were seeking drugs when
                              -3-                106629

they entered the premises. County Court, among other things,
permitted defense counsel to question Graziano about her drug use
on the subject night, and she admitted using cocaine as well as
possessing a digital scale. Such proof adequately established
Graziano's involvement in bad acts and her exposure to potential
criminal charges for defendant to urge the jury that she was
biased or tailoring her testimony to obtain leniency from
potential prosecution and to otherwise attack her credibility,
including the veracity of her testimony that the perpetrators
were armed with a chisel and a knife.

      Although the restrictive parameters placed on such proof by
County Court creates a close issue, allowing a free-wheeling
general inquiry into all of Graziano's alleged drug activities
would have produced confusion regarding the issues pertinent to
the trial, resulting in a mini-trial on Graziano's unrelated and
marginally relevant personal drug problems. Defendant's efforts
to pursue this broad line of proof about Graziano's history with
drugs, particularly with extrinsic evidence, was sliding rapidly
toward a trial on a collateral matter where the trial court has
wide discretion regarding the extent permitted of such proof (see
e.g. People v Powell, ___ NY3d ___, ___, 2016 NY Slip Op 02555,
*5 [2016]; People v Allen, 24 NY3d 441, 450 [2014]). In any
event, Graziano was one of several witnesses whose testimony
established the elements of the crimes and, in light of the
overwhelming proof of defendant's involvement and guilt, we would
find any error by County Court harmless beyond a reasonable doubt
(see People v Spencer, 20 NY3d 954, 956-957 [2012]; People v
Hughes, 111 AD3d 1170, 1174 [2013], lv denied 23 NY3d 1038
[2014]).

     Peters, P.J., Lahtinen and Garry, JJ., concur.


Clark, J. (concurring).

      I respectfully disagree with the majority's conclusion that
County Court properly restricted the scope of defendant's cross-
examination of certain witnesses, but agree that, in this case,
the error was harmless.
                              -4-                106629

      While the trial court has broad discretion to limit cross-
examination into collateral matters aimed at impeaching the
credibility of a witness (see People v Wilson, 100 AD3d 1045,
1047 [2012], lv denied 22 NY3d 998 [2013]; People v Comfort, 60
AD3d 1298, 1300 [2009], lv denied 12 NY3d 924 [2009]; People v
Love, 307 AD2d 528, 531 [2003], lv denied 100 NY2d 643 [2003]),
"'extrinsic proof tending to establish a reason to fabricate is
never collateral and may not be excluded on that ground'" (People
v Alnutt, 101 AD3d 1461, 1465 [2012], lv denied 21 NY3d 941
[2013], cert denied 571 US ___, 134 S Ct 1035 [2014], quoting
People v Hudy, 73 NY2d 40, 56 [1988], abrogated on other grounds
by Carmell v Texas, 529 US 513 [2000]; accord People v Spencer,
20 NY3d 954, 956 [2012]). Evidence of a motive to fabricate may
be excluded if it is too remote or speculative or lacks a good-
faith basis (see People v Brown, 128 AD3d 1183, 1187 [2015], lv
denied 27 NY3d 993 [2016]; People v DeFreitas, 116 AD3d 1078,
1082 [2014], lv denied 24 NY3d 960 [2014]; People v Poole, 55
AD3d 1349, 1350 [2008], lv denied 11 NY3d 929 [2009]).

      In my view, the drugs and drug paraphernalia found at the
residence and photographed and confiscated by the police provided
Desiree Graziano with a motive to tailor portions of her
testimony to curry favor with the prosecution in an attempt to
avoid criminal prosecution on drug charges, and defendant should
have been permitted to fully develop that motive at trial. To
defendant's detriment, County Court permitted the jury to hear
evidence that the intruders demanded money and drugs when they
entered the residence, but precluded defendant from presenting a
full picture of the crime scene to establish Graziano's motive to
fabricate. Although County Court permitted defense counsel to
inquire as to whether Graziano had been charged with any crimes
flowing from the night in question or whether she had been
offered a plea deal or received any promises in exchange for her
testimony, the court curtailed further cross-examination on these
subjects and the particulars of the drugs and drug paraphernalia
found in the residence. By so limiting cross-examination, County
Court hampered defendant's ability to effectively convey to the
jury the precise nature of the charges to which Graziano was
exposed and the significance of her not being charged with those
crimes.
                              -5-                106629

      The theory that Graziano fabricated portions of her
testimony to avoid prosecution on drug charges was not too remote
or speculative and, given that physical evidence of drug dealing
was plainly discovered in Graziano's residence, it did not lack a
good-faith basis (see People v Hudy, 73 NY2d at 57; People v
Ocampo, 28 AD3d 684, 686 [2006]). Graziano's testimony at trial
helped to establish that defendant or his accomplices "[u]se[d]
or threaten[ed] the immediate use of a dangerous instrument"
during the course of the crimes (Penal Law §§ 140.30 [3]; 160.15
[3]). In particular, Graziano testified that she and her son
were threatened with a chisel and with a white-handled paring
knife. Graziano did not mention the chisel or the paring knife
in her statement to the police immediately following the crimes
or during her follow-up interview with the police three weeks
later. Considering the abundance of evidence against him,
defendant sought to challenge the evidence of a dangerous weapon
in the hopes that the jury would convict him of lesser included
crimes, rather than burglary in the first degree and robbery in
the first degree. By limiting the scope of defendant's cross-
examination, County Court impaired his ability to develop
Graziano's motive to fabricate the evidence relating to the
dangerous weapons and, thus, improperly restricted his cross-
examination of adverse witnesses (see People v Spencer, 20 NY3d
at 956; People v Ocampo, 28 AD3d at 686; People v Ashner, 190
AD2d 238, 248 [1993]).

      The majority asserts that allowing defendant to pursue his
desired line of cross-examination would have resulted in "a free-
wheeling general inquiry" into "Graziano's unrelated and
marginally relevant personal drug problems" and "a trial on a
collateral matter." However, I am not suggesting that County
Court should have permitted defendant free rein to inquire into
all of Graziano's alleged drug activities or her personal history
with drugs. Rather, County Court should have allowed defendant
to engage in a measured cross-examination regarding the
particulars of the drugs and drug paraphernalia, including the
drugs on the digital scale, found at the crime scene and to
introduce the photographs taken of these items so as to provide
the jury with a complete understanding of Graziano's motive to
fabricate – a matter that is never collateral.
                              -6-                  106629

      Notwithstanding my conclusion that County Court's
restriction of defendant's cross-examination was too severe, such
error was, in this particular case, harmless beyond a reasonable
doubt (see People v Spencer, 20 NY3d at 956-957). Excluding
Graziano's testimony relating to the dangerous weapons, the
testimony offered by other witnesses and the recovery of a chisel
and a paring knife at the scene by law enforcement officers
provided overwhelming proof establishing defendant's
participation in the home invasion and the use of a weapon or
dangerous instrument during the commission of the crimes.
Accordingly, I join in the majority's determination to affirm the
judgment of conviction.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
