People v. Mercado

Mar 25, 1997
Versions:237 A.D.2d 200
655 N.Y.S.2d 474
1997 N.Y. App. Div. LEXIS 2780

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered June 24, 1994, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 10 to 20 years and 6 to 12 years, respectively, unanimously affirmed.

The trial court appropriately exercised its discretion when it denied defendant’s motion to strike the entire direct testimony of a prosecution witness who refused to answer one question posed by the prosecutor regarding the identity of the participants in the robbery, and when it instructed the jury, with defendant’s approval, that the witness’s refusal to answer could be considered in assessing his credibility (see, People v Chin, 67 NY2d 22). There was no violation of the Confrontation Clause because the defense was given the opportunity to expose infirmities in the witness’s direct testimony through cross-examination (Delaware v Fensterer, 474 US 15, 22). Further, defendant utilized the witness’s refusal to answer to his benefit, and has not demonstrated that he was prejudiced by the court’s ruling.

The trial court’s supplemental instructions regarding accomplice liability did not alter the theory of prosecution.

We perceive no abuse of discretion in sentencing. Concur— Wallach, J. P., Nardelli, Williams and Tom, JJ.