People v. Rivera — 98 A.D.3d 529

Majority

p. 529

The People of the State of New York, Respondent, v Hector Rivera, Appellant.

[948 NYS2d 912]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.), rendered October 20, 2009, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court has broad discretion to limit cross-examination when questions are repetitive, irrelevant or only marginally relevant, concern collateral issues, or threaten to mislead the jury (see Delaware v Van Arsdall, 475 US 673 , 679 [1986]; People v Gaviria, 67 AD3d 701 , 702 [2009]). The trial court did not deny the defendant the right to confront the witnesses against him by its decision to limit his cross-examination of a certain prosecution witness (see People v Baez, 59 AD3d 635 , 635-636 [2009]; People v Stevens, 45 AD3d 610 , 611 [2007]).

In order for a defendant to compel production of a confidential

p. 530

informant, the defendant must demonstrate that the proposed testimony of the informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution’s case either through direct examination or impeachment (see People v Lesiuk, 81 NY2d 485 , 489 [1993]; People v Williams, 242 AD2d 917 , 918 [1997]; People v Perkins, 227 AD2d 572 , 574 [1996]; People v Rosa, 150 AD2d 623 , 624 [1989]). There is no merit to the defendant’s contention that the trial court erred in denying his request that the confidential informant be produced. “ ‘Bare assertions or conclusory allegations by a defendant that a witness is needed to establish his innocence will not suffice’ ” (People v Pena, 37 NY2d 642 , 644 [1975], quoting People v Goggins, 34 NY2d 163 , 169 [1974], cert denied 419 US 1012 [1974]).

“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions” (People v Rivera, 71 NY2d 705 , 708 [1988]; see US Const Sixth Amend; NY Const, art I, § 6; People v Collado, 90 AD3d 672 , 672 [2011]). Here, the defendant was not deprived of the effective assistance of counsel under the New York Constitution because, viewing defense counsel’s performance in totality, counsel provided meaningful representation (see People v Benevento, 91 NY2d 708 , 712 [1998]; People v Baldi, 54 NY2d 137 , 147 [1981]; People v Collado, 90 AD3d at 673 ). Further, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v Washington, 466 US 668 [1984]). Rivera, J.P., Florio, Eng and Cohen, JJ., concur.

Cases cited

Delaware v. Van Arsdall 475 US 673 SCOTUS 1986-04-07 at 679 p. 529
People v. Gaviria 67 AD3d 701 N.Y. App. Div. 2009-11-04 at 702 p. 529
Pepole v. Baez 59 AD3d 635 N.Y. App. Div. 2009-02-17 at 635-636 p. 529
People v. Lesiuk 81 NY2d 485 N.Y. 1993-07-08 at 489 p. 530
People v. Rosa 150 AD2d 623 N.Y. App. Div. 1989-05-15 at 624 p. 530
People v. Pena 37 NY2d 642 N.Y. 1975-10-30 at 644 p. 530
People v. Goggins 34 NY2d 163 N.Y. 1974-05-15 at 169 p. 530
People v. Rivera 71 NY2d 705 N.Y. 1988-05-31 at 708 p. 530
People v. Collado 90 AD3d 672 N.Y. App. Div. 2011-12-06 at 672 p. 530
People v. Benevento 91 NY2d 708 N.Y. 1998-06-11 at 712 p. 530
People v. Baldi 54 NY2d 137 N.Y. 1981-10-29 at 147 p. 530
Strickland v. Washington 466 US 668 SCOTUS 1984-05-14 p. 530