People v. McKenzie

148 A.D.3d 936

49 N.Y.S.3d 708

The PEOPLE, etc., respondent,

v.Linford McKENZIE, appellant.

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

March 15, 2017.

Randall D. Unger, Bayside, NY, for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Christine DiSalvo, and Tina Gallo of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kohm, J.), rendered March 31, 2015, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court dated April 7, 2015. The appeals bring up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment and the resentence are affirmed.

At a hearing on the defendant's motion to suppress physical evidence, Police Officer Alfred Lawrence testified that on the night of July 7, 2010, he responded to a radio call regarding an officer in need of assistance in apprehending a suspect at a residence in Queens. After he and several fellow officers searched a garage at the premises and recovered a gun from the garage, Officer Lawrence walked to the front of the residence and observed a vehicle parked at the curb, with the defendant seated in the driver's seat. As the suspect was still at large, Officer Lawrence approached the passenger side of the vehicle and shined his flashlight into the car, observing a clear plastic bag containing what appeared to be marijuana in the center console, and the butt of a handgun protruding from a shoulder bag on the front passenger seat. The defendant was removed from the car and placed under arrest.

The defendant's counsel sought to cross-examine Officer Lawrence with regard to the discovery of the gun in the garage, and the arrest of several other suspects in connection therewith, in an effort to challenge the officer's credibility. The prosecutor objected to this line of questioning, and the hearing court sustained the objections on the ground that the questioning concerned matters collateral to the issue to be decided at the hearing. The defense then presented testimony from three acquaintances of the defendant who had been present at the scene. Each of them stated that the defendant was detained with other suspects on the front lawn of the residence, and that the police only approached the subject vehicle and recovered items from it after they had already searched the defendant's person and recovered a key fob for the car from him. At the conclusion of the hearing, the court credited the testimony of Officer Lawrence and denied that branch of the defendant's omnibus motion which was to suppress physical evidence.

Contrary to the defendant's contention, the hearing court did not improperly curtail the cross-examination of Officer Lawrence. The proposed cross-examination was clearly collateral to the subject of the hearing, as defense counsel sought to explore the discovery of a gun in the garage, the arrests of other suspects in connection with the recovery of that firearm, and the ultimate disposition of those other charges. Since these matters were not relevant to the arrest of the defendant, and since the hearing court otherwise provided defense counsel with wide latitude to properly challenge the credibility of the officer's account of the defendant's arrest and the recovery of contraband from the vehicle, the court did not improvidently exercise its broad discretion in refusing to permit cross-examination on issues that were not material to the hearing inquiry (see People v. Cruz, 131 A.D.3d 706, 707, 15 N.Y.S.3d 692 ; People v. Swain, 109 A.D.3d 1090, 1091, 971 N.Y.S.2d 613 ; People v. Bryant, 73 A.D.3d 1442, 1443, 900 N.Y.S.2d 810 ; Matter of Sheldon G., 234 A.D.2d 459, 459–460, 651 N.Y.S.2d 570 ; People v. Presha, 190 A.D.2d 1005, 593 N.Y.S.2d 629 ).

Similarly unavailing is the defendant's contention that Officer Lawrence's hearing...