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

1157
KA 08-01429
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NORMAN BOUNDS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered June 25, 2008. The judgment convicted
defendant, upon a jury verdict, of intimidating a victim or witness 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 following a
jury trial of intimidating a victim or witness in the third degree
(Penal Law § 215.15), defendant contends that he was deprived of a
fair trial by prosecutorial misconduct. Specifically, defendant
contends that the prosecutor engaged in misconduct by arranging for
the arrest of a woman who was in the courthouse waiting to testify on
defendant’s behalf, thereby interfering with his right to present a
defense. We reject that contention. It is well settled that “[d]ue
process may be violated when the prosecution’s conduct deprives a
defendant of exculpatory testimony . . . [,but the prosecution’s]
conduct is not a deprivation of a defendant’s right to call witnesses
where the proposed evidence is not shown to be exculpatory” (People v
Dixon, 93 AD3d 894, 895 [internal quotation marks omitted]). Here,
because defense counsel decided not to call the woman as a witness, it
has not been established that her testimony, if given, would have been
exculpatory. Moreover, inasmuch as the arrest of the potential
witness was clearly lawful—indeed, defendant does not dispute that
fact and instead challenges the timing of the arrest—we perceive no
basis to conclude that the prosecutor acted improperly by having the
witness arrested before she was able to testify. Although defendant
had a right to call the woman as a witness, the police were not
obligated to wait until after she testified to place her under arrest.

     Defendant’s further contention that he was deprived of a fair
                                 -2-                          1157
                                                         KA 08-01429

trial by an improper comment made by the prosecutor during his
summation is unpreserved for our review (see CPL 470.05 [2]) and, in
any event, that contention lacks merit. Finally, although we agree
with defendant that County Court erred in admitting in evidence a stun
gun found in the vehicle that defendant was driving a day after the
charged crimes were committed, we conclude that the Molineux error is
harmless (see People v Talyor, 97 AD3d 1139, 1141, lv denied 19 NY3d
1029; People v Baker, 21 AD3d 1435, 1436, lv denied 6 NY3d 773). The
proof of guilt is overwhelming, and there is no significant
probability that defendant would have been acquitted if the stun gun
had not been admitted in evidence (see generally People v Kello, 96
NY2d 740, 744; People v Crimmins, 36 NY2d 230, 241-242).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
