People v Agosto, 2022 NY Slip Op 01461 [203 AD3d 841]
March 9, 2022
Appellate Division, Second Department
[*1]
The People of the State of New York, Respondent,
v
Arron J. Agosto, Appellant.
Patricia Pazner (White & Case LLP, New York, NY [Claudine Columbres, Jade Yoo, and Sandra Redivo], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Dmitriy Povazhuk, and Solomon Neubort of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered September 19, 2019, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is affirmed.
In the context of a Huntley hearing ( People v Huntley , 15 NY2d 72 [1965]), the People are not necessarily “mandated to produce all police officers who had contact with the defendant from arrest to the time that the challenged statements were elicited” ( People v Witherspoon , 66 NY2d 973, 974 [1985]; see People v Giron , 181 AD3d 710 , 710-711 [2020]; People v Cuevas , 172 AD3d 567 , 567 [2019]). The People are only required to produce police officers who interacted with a defendant prior to a confession where the defendant sets forth a “ ’bona fide factual predicate’ to demonstrate that the uncalled officers possessed material evidence on the question of voluntariness” ( People v Cuevas , 172 AD3d at 567, quoting People v Witherspoon , 66 NY2d at 974; see People v Giron , 181 AD3d at 711). Here, the record does not show that there existed a bona fide factual predicate that would have required the production of the subject police witness ( see People v Witherspoon , 66 NY2d at 974; People v Giron , 181 AD3d at 711). Accordingly, the Supreme Court properly denied suppression of the defendant’s statements to law enforcement officials.
Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination ( see US Const 6th Amend; NY Const, art I, § 6), that right is not unfettered ( see People v Wingate , 184 AD3d 738 , 739 [2020]). “The trial court has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury” ( People v Francisco , 44 AD3d 870 , 870 [2007]; see People v Wingate , 184 AD3d at 739). Here, the Supreme Court providently exercised its discretion in curtailing the cross-examination of the complainant regarding incidents that allegedly took place within a non-relevant period of time ( see People v Simms , 178 AD3d 963 , 964 [2019]). [*2] “[A] defendant is justified in using ‘deadly physical force’ upon another only if that defendant ‘reasonably believes that such other person is using or about to use deadly physical force’ ” ( People v Brown , 33 NY3d 316 , 320 [2019], quoting Penal Law § 35.15 [2] [a]; see People v Anderson , 180 AD3d 923 [2020], affd 36 NY3d 1109 [2021]). A justification defense may be negated by proof that “[t]he physical force involved is the product of a combat by agreement not specifically authorized by law” (Penal Law § 35.15 [1] [c]; see People v Anderson , 180 AD3d at 923). An agreement to engage in combat not authorized by law can be a tacit agreement ( see People v Russell , 91 NY2d 280, 288-290 [1998]; People v Young , 33 AD3d 1120 , 1124 [2006]). Here, there was a reasonable view of the evidence under which the jury could have found there was a tacit agreement by the defendant and the complainant to engage in combat not authorized by law. Therefore, the Supreme Court properly instructed the jury regarding combat by agreement ( see generally People v Russell , 91 NY2d at 288-290; People v Young , 33 AD3d at 1120-1124). Brathwaite Nelson, J.P., Iannacci, Rivera and Ford, JJ., concur..