        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1271
KA 09-01624
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALLEN COLVIN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered April 3, 2009. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree, robbery in the second degree and criminal possession of a
weapon in the second degree.

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

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of, inter alia, robbery in the first degree (Penal Law §
160.15 [4]), defendant contends that Supreme Court erred in refusing
to allow him to present evidence that a codefendant wrote a letter
admitting that he committed the crimes charged in the indictment. We
reject that contention. It is well settled that, “[b]efore statements
of a nontestifying third party are admissible as a declaration against
penal interest, the proponent must satisfy the court that four
prerequisites are met [, including that] . . . the declarant must be
aware at the time of its making that the statement was contrary to his
penal interest” (People v Brensic, 70 NY2d 9, 15, mot to amend
remittitur granted 70 NY2d 722; see People v Shabazz, 22 NY3d 896,
898). Here, defendant failed to establish that the author of the
letter wrote it before pleading guilty, and defendant thus failed to
establish that the admission contained in the letter was against the
author’s penal interest when he wrote it (see generally People v
Ortiz, 81 AD3d 513, 514, lv denied 16 NY3d 898).

     With respect to his contentions regarding the Huntley hearing, we
note that defendant failed to preserve for our review his contention
that the court “unduly limited his cross-examination of a police
officer concerning . . . statements” that defendant made to that
officer (People v Rookey, 292 AD2d 783, 783, lv denied 98 NY2d 701).
                                 -2-                         1271
                                                        KA 09-01624

In any event, that contention is without merit. “It is well settled
that ‘[a]n accused’s right to cross-examine witnesses . . . is not
absolute’ . . . [and that t]he trial court has discretion to determine
the scope of the cross-examination of a witness” (People v Corby, 6
NY3d 231, 234, quoting People v Williams, 81 NY2d 303, 313). Here, we
conclude that the court did not abuse its discretion in limiting the
scope of defendant’s cross-examination of the officer at issue (see
People v Baker, 294 AD2d 888, 889, lv denied 98 NY2d 708; People v
Herner, 212 AD2d 1042, 1045, lv denied 85 NY2d 974).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
