         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1132
KA 07-01267
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TOMMY L. WASHINGTON, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 2, 2005. The judgment convicted defendant,
upon a jury verdict, of assault in the first degree, gang assault in
the second degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[1]), gang assault in the second degree (§ 120.06) and assault in the
second degree (§ 120.05 [2]). Defendant contends that he was denied a
fair trial based on the prosecutor’s improper questions on
cross-examination concerning whether the prosecution witnesses were
lying or were liars. That contention is not preserved for our review
inasmuch as defendant failed to object to those questions (see CPL
470.05 [2]), and we decline to exercise our power to review
defendant’s contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We note, however, that such
questions were improper (see People v Paul, 229 AD2d 932; People v
Paul, 212 AD2d 1020, 1021, lv denied 85 NY2d 912; People v Edwards,
167 AD2d 864, lv denied 77 NY2d 877). As this Court stated over 20
years ago, “[o]n numerous occasions, we have forcefully condemned
prosecutorial cross-examination which compels a defendant to state
that witnesses lied in their testimony” (People v Eldridge, 151 AD2d
966, 966, lv denied 74 NY2d 808). Unfortunately, we find it necessary
once again to forcefully condemn such improper conduct by the
prosecutor.

     Defendant’s challenge to the legal sufficiency of the evidence is
also unpreserved for our review because defendant made only a general
motion for a trial order of dismissal that was not based on the
grounds set forth on appeal (see People v Gray, 86 NY2d 10, 19; People
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                                                         KA 07-01267

v Clark, 42 AD3d 957, 958, lv denied 9 NY3d 960). In any event, that
challenge is lacking in merit (see generally People v Bleakley, 69
NY2d 490, 495). Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). We reject
defendant’s further contention that he was denied effective assistance
of counsel. Viewing the evidence, the law and the circumstances of
this case in totality and as of the time of the representation, we
conclude that defendant received meaningful representation (see
generally People v Baldi, 54 NY2d 137, 147). We have considered
defendant’s remaining contentions and conclude that they are lacking
in merit.




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
