JIMMESON, MAKESHA, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1369
KA 08-01359
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
MAKESHA JIMMESON, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered April 16, 2008. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting her, upon a
jury verdict, of assault in the second degree (Penal Law
§ 120.05 [2]), defendant contends that Supreme Court erred in refusing
to permit her to present evidence of a prior altercation involving
defendant and the victim to demonstrate the character of defendant as
well as that of the victim. We reject that contention. Character
evidence “ ‘is strictly limited to testimony concerning the [party’s]
reputation’ ” in the community (People v Mancini, 213 AD2d 1038, 1039,
lv denied 85 NY2d 976; see People v Kuss, 32 NY2d 436, 443, rearg
denied 33 NY2d 644, cert denied 415 US 913), and thus “a character
witness may not testify to specific acts” in order to establish
character (Mancini, 213 AD2d at 1039; see People v Ciccone, 90 AD3d
1141, 1144, lv denied 19 NY3d 863). The court also properly refused
to allow defendant to present evidence of the prior altercation in
order to impeach the trial testimony of two prosecution witnesses.
“It is well established that the party who is cross-examining a
witness cannot . . . call other witnesses to contradict a witness’
answers concerning collateral matters solely for the purposes of
impeaching that witness’ credibility” (People v Pavao, 59 NY2d 282,
288-289; see People v Caswell, 49 AD3d 1257, 1258, lv denied 11 NY3d
735). Finally, defendant failed to preserve for our review her
present contention that evidence of the prior altercation was
admissible to establish that she did not have a motive to assault the
victim and that the two prosecution witnesses had a motive to
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KA 08-01359
fabricate their trial testimony (see CPL 470.05 [2]; People v Coapman,
90 AD3d 1681, 1683, lv denied 18 NY3d 956). We decline to exercise
our power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court