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

755
KA 10-01173
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAFIQ SALIM, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

RAFIQ SALIM, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered April 15, 2010. The judgment convicted
defendant, upon a nonjury verdict, of harassment in the second degree
and assault in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of assault in the third degree (Penal Law §
120.00 [1]) and harassment in the second degree (§ 240.26 [1]).
Defendant failed to preserve for our review his contention that the
conviction is not supported by legally sufficient evidence (see People
v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,
that contention lacks merit (see generally People v Bleakley, 69 NY2d
490, 495). In addition, viewing the evidence in light of the elements
of the crimes in this nonjury trial (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see Bleakley, 69 NY2d at 495). We further conclude,
however, that Supreme Court abused its discretion in admitting
rebuttal evidence concerning defendant’s relationship with a woman
other than his wife, requiring reversal of the judgment and a new
trial. “The general rule of evidence in this State concerning the
impeachment of witnesses with respect to collateral matters is ‘that
the cross-examiner is bound by the answers of the witness to questions
concerning collateral matters inquired into solely to affect
credibility’ ” (People v Pavao, 59 NY2d 282, 288; see People v
Bellamy, 26 AD3d 638, 641). Defendant’s extramarital relationship
“was not a material issue in this case . . . [, and t]he rebuttal
testimony served solely to attack defendant’s credibility on a
collateral issue” (Bellamy, 26 AD3d at 641).
                                 -2-                           755
                                                         KA 10-01173

     In view of our decision to reverse, we need not address
defendant’s remaining contentions, including those raised in his pro
se supplemental brief.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
