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

1203
KA 10-02117
PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NOEL R. RIVERA, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS 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 (David
D. Egan, J.), rendered July 15, 2010. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree (two
counts).

     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 two counts of assault in the first degree
(Penal Law § 120.10 [1]). We agree with defendant that Supreme Court
erred in precluding defense counsel from questioning a defense witness
regarding the basis of her knowledge of a prosecution witness’s
reputation for truthfulness and honesty (see People v Hanley, 5 NY3d
108, 112-114; People v Hopkins, 56 AD3d 820, 821-822; see also People
v Carter, 31 AD3d 1167, 1168). “ ‘[A] party has a right to call a
witness to testify that a key opposing witness, who gave substantive
evidence and was not called for purposes of impeachment, has a bad
reputation in the community for truth and veracity’ ” (People v
Fernandez, 17 NY3d 70, 76; see Hanley, 5 NY3d at 112). We conclude,
however, that the error is harmless. The evidence of guilt is
overwhelming, and there is no significant probability that the jury
would have acquitted defendant if they were allowed to hear testimony
that the prosecution witness had a bad reputation for truthfulness
(see Hopkins, 56 AD3d at 823-824; see generally People v Crimmins, 36
NY2d 230, 241-242; cf. Hanley, 5 NY3d at 114-115).

     Defendant’s contention that the prosecutor’s summation and the
court’s instruction to the jury constructively amended the indictment
and thereby improperly changed the theory of the prosecution is not
preserved for our review (see People v Cullen, 110 AD3d 1474, 1475,
affd 24 NY3d 1014; People v Osborne, 63 AD3d 1707, 1708, lv denied 13
                                 -2-                          1203
                                                         KA 10-02117

NY3d 748; People v Odom, 53 AD3d 1084, 1086, lv denied 11 NY3d 792).
In any event, that contention is without merit. The indictment
charged defendant with assaulting one of the victims “by means of a
deadly weapon, to wit: a shotgun.” Defendant contends that he was
prejudiced both by the prosecutor’s summation, which suggested that
defendant shot that victim first with a shotgun and then a revolver,
after the shotgun jammed, and the court’s charge, which instructed the
jury that they were to determine whether defendant committed assault
“by means of a deadly weapon.” The indictment, however, “ ‘charged
more than the People were required to prove under the statute . . . ,
and the trial court’s charge did not usurp the grand jury’s powers or
change the theory of the prosecution’ ” (Odom, 53 AD3d at 1086; see
People v Spann, 56 NY2d 469, 471-473; see also People v Sage, 204 AD2d
746, 747, lv denied 84 NY2d 832). The People never changed their
theory that the victim at issue was shot by defendant’s use of a
shotgun. Defendant’s further contention that the trial evidence
rendered the indictment duplicitous is not preserved for our review
(see People v Allen, 24 NY3d 441, 449-450), and we decline to exercise
our power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial by prosecutorial misconduct (see People v
Benton, 106 AD3d 1451, 1451-1452, lv denied 21 NY3d 1040; People v
Wellsby, 30 AD3d 1092, 1093, lv denied 7 NY3d 796). In any event, his
contention is without merit. The prosecutor’s remarks on summation
were within “the broad bounds of rhetorical comment permissible during
summations” and did not shift the burden of proof (People v McEathron,
86 AD3d 915, 916, lv denied 19 NY3d 975 [internal quotation marks
omitted]). The prosecutor’s remarks regarding defendant’s possession
of the revolver was a fair response to defense counsel’s summation and
fair comment on the evidence (see People v Walker, 117 AD3d 1441,
1441-1442, lv denied 23 NY3d 1044). The prosecutor did not engage in
misconduct in questioning certain police officers and, to the extent
the prosecutor engaged in misconduct during her cross-examination of a
defense witness, that misconduct was not so egregious as to deprive
defendant of a fair trial (see Wellsby, 30 AD3d at 1093). Finally, we
reject defendant’s contention that he was denied effective assistance
of counsel (see generally People v Baldi, 54 NY2d 137, 147).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
