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

196
KA 15-01369
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WENDELL D. SMITH, DEFENDANT-APPELLANT.


GANGULY BROTHERS, PLLC, ROCHESTER (ANJAN K. GANGULY OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered July 23, 2015. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree, criminal possession of a controlled substance in
the third degree (three counts), criminally using drug paraphernalia
in the second degree (three counts) and criminal possession of a
controlled substance in the fourth 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 multiple drug offenses and a single charge of criminal
possession of a weapon in the second degree (Penal Law § 265.03 [3])
based on charges arising from two separate criminal incidents,
defendant contends that County Court erred in refusing to sever the
counts related to the second incident from the counts related to the
first incident. We reject that contention. Defendant, in seeking
severance, “failed to meet his burden of submitting sufficient
evidence of prejudice from the joinder to establish good cause to
sever” (People v Anderson, 113 AD3d 1102, 1103, lv denied 22 NY3d
1196; see CPL 200.20 [3]; People v Sharp, 104 AD3d 1325, 1325-1326, lv
denied 21 NY3d 1009). Moreover, the evidence concerning the two
separate incidents was presented separately and through different
witnesses. We thus conclude that the evidence “was readily capable of
being segregated in the minds of the jury” (People v Ford, 11 NY3d
875, 879), and defendant failed to establish that there was a
“substantial likelihood that the jury would be unable to consider the
proof of each offense separately” (People v Rios, 107 AD3d 1379, 1380,
lv denied 22 NY3d 1158 [internal quotation marks omitted]).

     Defendant further contends that the court erred in refusing to
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                                                         KA 15-01369

suppress evidence that was seized from his residence during the
execution of a search warrant. “By failing to seek a ruling on that
part of his omnibus motion challenging the [search warrant] and by
failing to object to the [admission of the seized evidence] at trial,
defendant abandoned his challenge to the [search warrant]” (People v
Linder, 114 AD3d 1200, 1201, lv denied 23 NY3d 1022). Although
defendant contends that “the court unequivocally denied” that part of
his omnibus motion seeking suppression of evidence seized from his
home, the record belies defendant’s contention. The only ruling on a
suppression issue contained in the record on appeal is the court’s
ruling denying suppression of the evidence seized from defendant’s
vehicle during a separate and distinct traffic stop.

     The court, in addressing issues related to the search warrant,
did conduct a Darden hearing and generated a summary report of that
hearing. Defendant now contends that the court erred in failing to
provide defense counsel with a copy of that summary report. Inasmuch
as defendant did not make “a prompt request for [the] summary, [he]
may not now complain” that he did not receive it (People v Lowen, 100
AD2d 518, 519; see People v Clark, 54 NY2d 941, 943).

     Defendant further contends that the court erred in ruling that
defense counsel could not question the police officer who conducted
the traffic stop of defendant concerning statements made by
defendant’s cousin, who was a passenger in the vehicle. According to
defendant, the cousin allegedly claimed that the drugs found under the
driver’s seat belonged to him. While the statements were certainly
against the cousin’s penal interest, and were made with both knowledge
and awareness that the statements were against his penal interest,
defendant failed to establish that the cousin was unavailable to
testify (see generally People v DiPippo, 27 NY3d 127, 136-137; People
v Brensic, 70 NY2d 9, 15, remittitur amended 70 NY2d 722). Indeed,
the cousin actually testified at trial on defendant’s behalf.
Inasmuch as unavailability of the declarant is a required element for
the introduction of a declaration against penal interest (see DiPippo,
27 NY3d at 136-137; Brensic, 70 NY2d at 15; People v McFarland, 108
AD3d 1121, 1122, lv denied 24 NY3d 1220), and exclusion of the
statement did not “infringe[] on defendant’s weighty interest in
presenting exculpatory evidence” (People v Oxley, 64 AD3d 1078, 1084,
lv denied 13 NY3d 941), we conclude that, even under the less exacting
standard for declarations offered by a defendant to exculpate himself
(see Brensic, 70 NY2d at 15; McFarland, 108 AD3d at 1122), the court
properly precluded defense counsel from cross-examining the police
officer regarding the cousin’s hearsay statements.

     For the first time, in his reply brief on appeal, defendant
raises other possible avenues for admission of the statements,
contending either that they were excited utterances or that they were
not being admitted for the truth of the matter asserted. Those
contentions are not preserved for our review (see People v Ludwig, 104
AD3d 1162, 1163, affd 24 NY3d 221; see also People v Lyons, 81 NY2d
753, 754), and were improperly raised for the first time in a reply
brief (see generally People v Allen, 104 AD3d 1170, 1173, lv denied 21
NY3d 1001).
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                                                         KA 15-01369

     Defendant further contends that the denial of an opportunity to
cross-examine the police officer on the cousin’s statements deprived
defendant of his constitutional rights to confront witnesses and to
present a defense. Arguably, those contentions are preserved for our
review (cf. Ludwig, 104 AD3d at 1163), but we conclude that the
contentions lack merit.

     It is well settled that “[t]he trial court has discretion to
determine the scope of the cross-examination of a witness” (People v
Corby, 6 NY3d 231, 234; see People v Rivera, 105 AD3d 1343, 1344, lv
denied 21 NY3d 1045), and the Court of Appeals has held that “an
accused’s right to cross-examine witnesses and present a defense is
not absolute” (People v Williams, 81 NY2d 303, 313). “Evidentiary
restrictions are to be voided only if they are ‘arbitrary or
disproportionate to the purposes they are designed to serve’ ”
(Williams, 81 NY2d at 313). “ ‘[T]he Confrontation Clause guarantees
an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense
might wish’ ” (People v Esquerdo, 71 AD3d 1424, 1425, lv denied 14
NY3d 887, quoting Delaware v Fensterer, 474 US 15, 20). Here,
defendant was afforded the opportunity for effective cross-examination
of the police officer, as well as the opportunity to present the
cousin’s testimony to the jury; no more was required in this case.

     Defendant also sought to introduce, as a declaration against
penal interest, a sworn statement from a third party who was in the
house on the night the search warrant was executed. In that
statement, the third party allegedly claimed that the drugs and gun
found in the residence belonged to him. Defendant now contends that
the court erred in refusing to permit defendant to admit that
statement in evidence. Defendant failed, however, to include the
third party’s statement in the record on appeal, and we cannot address
the merits of the contention without that statement. Inasmuch as it
was “defendant’s obligation to prepare a proper record” (People v
Olivo, 52 NY2d 309, 320, rearg denied 53 NY2d 797), we conclude that
defendant must bear the consequences of his failure to include the
document in the record on appeal (see People v O’Halloran, 48 AD3d
978, 979, lv denied 10 NY3d 868; People v Taylor, 231 AD2d 945, 946,
lv denied 89 NY2d 930).

     With respect to defendant’s remaining contentions, we conclude
that the court did not abuse or improvidently exercise its discretion
in denying defendant’s request for a mistrial when the prosecutor
inadvertently mentioned the name of a fallen officer after the court
had precluded any reference to the officer’s name (see generally
People v Duell, 124 AD3d 1225, 1228, lv denied 26 NY3d 967; People v
Covington, 298 AD2d 966, 966, lv denied 99 NY2d 557); “did not
improvidently exercise its discretion by denying . . . defendant’s
oral request, in the midst of the trial, for a material witness order
to secure the appearance at trial of a proposed defense witness”
(People v Edwards, 267 AD2d 246, 246, lv denied 94 NY2d 902); and did
not err in summarily denying defendant’s motion to set aside the
verdict inasmuch as it was “ ‘supported only by hearsay allegations
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                                                         KA 15-01369

contained in an affidavit of defense counsel’ ” (People v Kerner, 299
AD2d 913, 913, lv denied 99 NY2d 583; see People v Comfort, 30 AD3d
1069, 1069-1070, lv denied 7 NY3d 787).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
