         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
489
KA 11-00007
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BENEDICT AGOSTINI, DEFENDANT-APPELLANT.


WHITE & WHITE, NEW YORK CITY (DIARMUID WHITE OF COUNSEL), 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 (Anthony F.
Aloi, J.), rendered July 15, 2009. The judgment convicted defendant,
upon a jury verdict, of manslaughter in the first degree and criminal
possession of a weapon in the third 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 manslaughter in the first degree (Penal Law § 125.20 [1])
and criminal possession of a weapon in the third degree (§ 265.02
[1]), defendant contends that he was denied a fair trial based on the
prosecutor’s cross-examination of his wife concerning her prior
employment as an exotic dancer. We agree with defendant that such
questions were improper. Employment as an exotic dancer does not
constitute a prior bad act for the purposes of cross-examination, and
those questions were not relevant to any other issue in the case. We
conclude, however, “that the prosecutor’s misconduct did not cause
such substantial prejudice to the defendant that he has been denied
due process of law” (People v Stabell, 270 AD2d 894, 894, lv denied 95
NY2d 804 [internal quotation marks omitted]; see People v Rubin, 101
AD2d 71, 77, lv denied 63 NY2d 711; People v Mott, 94 AD2d 415, 418-
419). “In this case, the misconduct was not pervasive and was limited
in nature” (Rubin, 101 AD2d at 77). Defendant’s further contention
that he was denied a fair trial based upon two identical instances of
prosecutorial misconduct is not preserved for our review (see CPL
470.05 [2]) and, in any event, it is without merit. Although County
Court overruled defense counsel’s objection with respect to the first
of those instances, it responded to his subsequent objection by giving
the jury a curative instruction. Defense counsel neither objected to
that instruction nor moved for a mistrial.
                                 -2-                           489
                                                         KA 11-00007

     We reject defendant’s contention that his right of confrontation
was violated when the court limited his cross-examination of a police
detective regarding the methods used by the police to take witness
statements. That detective interviewed only one witness and was not
present for the interviews of other witnesses, and defense counsel was
able to cross-examine all witnesses regarding the inconsistencies
between their trial testimony and their statements to the police.
Thus, under the circumstances of this case, we conclude that the court
did not abuse its discretion in limiting defendant’s cross-examination
of the detective in question (see generally People v Taylor, 214 AD2d
757, lv denied 87 NY2d 851). Finally, the sentence is not unduly
harsh or severe.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
