People v. Heiserman

212 A.D.3d 949

181 N.Y.S.3d 741

The PEOPLE of the State of New York, Respondent,

v.Michael HEISERMAN, Appellant.

112214

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 17, 2022

Decided and Entered: January 12, 2023

G. Scott Walling, Slingerlands, for appellant.

Elizabeth M. Crawford, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal (upon remittal from the Court of Appeals) from a judgment of the County Court of Franklin County (Derek P. Champagne, J.), rendered September 4, 2019, upon a verdict convicting defendant of the crime of assault in the second degree.

The relevant facts pertaining to this appeal are set forth in our prior decision in this matter ( 204 A.D.3d 1249, 166 N.Y.S.3d 387 [3d Dept. 2022], revd 39 N.Y.3d 988, 181 N.Y.S.3d 519, 201 N.E.3d 1292 [2022] ). We reversed the judgment of conviction, concluding that it was error for County Court not to instruct the jury on the defense of justification. Upon appeal, the Court of Appeals determined that there was no reasonable view of the evidence that defendant's use of force was necessary to defend himself from the use of unlawful physical force, and thus, County Court did not err in denying defendant's request for a justification charge ( 2022 N.Y. Slip Op. 07024 at *1–2 [2022] ). The Court remitted this matter to this Court to determine defendant's remaining contention on appeal – whether County Court erred in permitting the People to elicit testimony on redirect examination regarding crimes or bad acts that defendant allegedly committed earlier in the day, prior to the indicted instant offense.

"When a party opens the door during cross-examination to excluded evidence, the opponent may seek to admit the excluded evidence in order to explain, clarify and fully elicit the question that has been only partially exposed on cross-examination" ( People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004] [internal quotation marks and citations omitted], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ). "A trial court has the discretion to decide door opening issues by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" ( People v. George, 199 A.D.3d 1064, 1066, 156 N.Y.S.3d 549 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 332, 180 N.E.3d 496 [2021] ).

On cross-examination, defense counsel asked the police officer who arrested defendant and transported him to the jail questions about interactions with defendant prior to his arrest. Specifically, defense counsel asked the officer if he knew whether defendant called the police station because his son was missing. The officer confirmed that was the reason he was dispatched to the scene. Defense counsel also asked the officer if defendant appeared to be calm while being processed at the jail. In response, the officer testified that defendant had been calm inside of the officer's vehicle while being transported to the jail. Prior to redirect examination, the prosecutor argued – outside of the jury's presence – that defense counsel had opened the door such that he should be able to inquire about the initial police contact. County Court agreed and permitted such questioning. The officer then testified that he responded to a call that a young child was missing...