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

298
KA 14-00197
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEROME THOMPSON, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (ERIC R. SCHIENER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered December 16, 2013. The judgment convicted defendant,
upon a jury verdict, of promoting prison contraband in the first
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 promoting prison contraband in the first degree
(Penal Law § 205.25 [2]). Contrary to the contention of defendant, we
conclude that there was a reasonable basis articulated on the record
to justify the determination to have him handcuffed when he testified
before the grand jury (see People v Rouse, 79 NY2d 934, 935; People v
Jacobs, 298 AD2d 954, 955, lv denied 99 NY2d 559). Defendant’s
contention that he was denied a fair trial based upon prosecutorial
misconduct on summation is not preserved for our review (see CPL
470.05 [2]; People v Ross, 118 AD3d 1413, 1416-1417, lv denied 24 NY3d
964) and, in any event, is without merit. We agree with defendant
that the prosecutor acted improperly by eliciting testimony from
defendant on cross-examination that several of the People’s witnesses
were mistaken (see People v Railey, 214 AD2d 455, 455, lv denied 86
NY2d 800; People v Roundtree, 190 AD2d 879, 880), calling a rebuttal
witness to impeach defendant’s credibility with respect to a
collateral matter (see People v Pavao, 59 NY2d 282, 288-289; People v
Burns, 122 AD3d 1435, 1436), and injecting his own credibility into
the trial (see People v Paperno, 54 NY2d 294, 300). We conclude,
however, that those improprieties were “not so egregious as to deprive
defendant of his right to a fair trial, when viewed in the totality of
the circumstances of this case” (People v Martina, 48 AD3d 1271, 1273,
lv denied 10 NY3d 961 [internal quotation marks omitted]; see People v
Gonzalez, 206 AD2d 946, 947, lv denied 84 NY2d 867). Indeed, the
                                 -2-                           298
                                                         KA 14-00197

improper conduct merely highlighted defendant’s claim that the
incident never occurred and that the entire case against him was
fabricated.

     Finally, the sentence, although the statutory maximum, is not
unduly harsh or severe, particularly in view of defendant’s lengthy
criminal history and disciplinary record while incarcerated.



                                                Frances E. Cafarell




Entered:   March 27, 2015
                                                Clerk of the Court
