The defendant was convicted on December 3, 2009, after a jury trial conducted by this Court, of count 2 of the indictment, Endangering the Welfare of a Child [PL 260.10(1)]. The defendant was acquitted of count 1 of the indictment, Assault in the Second Degree [PL 120.05(2)].^[FN1] Essentially, the People alleged that the defendant beat his teenage daughter with a metal cane.

The defendant has not yet been sentenced upon his conviction, as this case was adjourned based upon the defense's request to file a motion to set aside the verdict. The matter was thereafter adjourned several times over the following months for motion practice, for the ordering of trial minutes, and for oral argument.

In his instant motion dated January 13, 2010, and in his reply affirmation dated June 20, 2010, the defendant seeks to set aside his verdict of conviction pursuant to CPL 330.30[1]. Specifically, the defense argues that the defendant was denied an opportunity to set forth facts supporting his theory of defense, that he was improperly ordered by the Court to release certain property belonging to the complainant, and that the People were permitted to cross-examine the defendant on matters that should have been prohibited. The defendant alleges that these errors, occurring during the course of the trial, if raised on appeal, would require reversal or modification of the judgement obtained against him.

The People have submitted an affirmation and memorandum of law, dated April 28, 2010, in opposition to the defendant's motion. Although the People submit that the defendant's motion should be denied on the merits, they also submit that the allegations raised by the defendant are procedurally barred from being raised in a CPL 330.30 motion. [*2]Even though the Court agrees with the People that "only a claim of error that is properly preserved for appellate review may serve as the basis to set aside the verdict" (see, People v. Josey, 204 AD2d 571 [2nd Dept 1994]), the Court will not determine whether the defendant did in fact adequately preserve his objections. Instead, the Court will address the merits, and leave the determination of whether a proper record was made to any reviewing courts.

CPL 330.30[1] states that "at any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon . . . any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court".^[FN2] A matter of law, as applicable to the defendant's motion, would be "a ruling or instruction of the court . . . [which] deprived the defendant of a fair trial" (see, CPL 470.15[4][a]).

The defendant's first argument in support of his motion isthat the "defense was unable to set forth any facts supporting its defense theory, that these wounds ^[FN3] were self-inflicted by a girl who had a habit of hurting herself" (see, defendant's motion, dated January 13, 2010, at first and second pages). Specifically, the defense alleges that the complainant suffers from psychiatric defects, and that the Court improperly precluded the defendant from cross-examining the complainant regarding these alleged psychiatric defects. The defense also submits that the People, during their direct examination of the complainant, opened the door to the issue of whether the complainant would ever hurt herself, but the defense was nonetheless precluded on cross-examination from inquiring as to this issue.

After reviewing the complainant's private diary, the defense indicated that the diary reflects a "history of self-destructive behaviors" on the part of the complainant, including cutting herself, starving herself, and "contemplating the ways in which she would kill herself" (see, defense motion, first page, paragraph 4).

Regarding the defendant's first claim, after reviewing the entire transcript of the trial in this case, in preparation for evaluating the instant motion, the Court finds that it acted properly in precluding the defense from cross-examining the complainant on any alleged psychiatric issues. The Court, in its role as gatekeeper ^[FN4] as to the admissibility of [*3]proffered evidence, finds that the defendant failed to lay any proper foundation for the claim that the complainant suffered from any psychiatric illness which would have been a relevant subject in the case.

At the time of the incident underlying this indictment, the complainant was a sixteen year old child. Like many adolescents, she kept a diary.^[FN5] When she was removed from the defendant's home by the Administration for Children's Services (ACS), after the instant allegations surfaced, defendant retained and withheld her diary. Before the trial of this matter, the defendant turned over the child's diary to his lawyer who read it, and marked it up with a highlighter (see, the minutes, dated November 12, 2009, page 434).

Once the trial began, the People read the diary, and the Court then conducted its own in camera inspection of the diary. Upon that inspection, it was clear to the Court that this personal and private property of the young complainant, writings which were made prior to the incident in question, reflected her thoughts, musings, feelings, and longings (see, the minutes, dated November 16, 2009, at pages 534- 535), but failed at the threshold to support any legitimate claim of mental illness. As the defense made no other offer of proof that the complainant was mentally ill, the Court precluded the defense from coss-examining the complainant on this issue.

The "role of the trial judge in a criminal case is not merely that of an observer or even that of a referee enforcing the rules of a game" (see, People v. Melendez, 31 AD3d 186, 196 [1st Dept 2006], leave denied, 7 NY3d 927 [2006]). One of a trail court's primary responsibilities is to "keep the proceedings within the reasonable confines of the issues and to encourage clarity rather than obscurity in the development of proof" (see, People v. Melendez, id.). "Issues must be left clear, not smothered or in a haze" (see, People v. Posner, 273 NY 184, 190 [1937]). A defendant cannot waft any innuendo willy nilly into the jury box hoping that it will stick and that the [*4]jury may somehow be affected by it. There must be some credible basis for believing that the offer has a genuine nexus to the case. In fact, proferred evidence by a defendant must "indicate a significant probative relation to [the] charges" (see, People v. Mandel, 48 NY2d 952 [1979]. In this case, the unsupported and conclusory ^[FN6] allegation by the defense that the victim was suffering from psychiatric illness was not only unfounded, but it was wholly unrelated to the trial issue as to whether or not the defendant beat his daughter with a metal cane on the date in question.

It would have undermined a fair trial for this Court to have permitted the defense to use isolated entries from the adolescent complainant's diary to invite the jury to speculate that the complainant suffered from mental illness, and to further speculate "that the youngster tried to harm herself". A ruling to the contrary would have permitted remote, speculative, and conjectural inference upon inference. A court must be ever vigilant to avert a miscarriage of justice (see, the minutes dated November 16, 2009, pages 534- 535). It is settled law that "evidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh" the risks of "undue prejudice to the opposing party, confusing the issues or misleading the jury", and is therefore inadmissible (see, People v. Primo, 96 NY2d 351, 355 [2001]). It was appropriate that the defense be barred from injecting a spurious, unfounded claim of mental illness into this case, in the hope that the jury would speculate that the complainant caused the injuries to herself, when there was no evidence of such.^[FN7] A [*5]contrary ruling would have permitted a confusion of the issues, misled the jury, and prejudiced the People.^[FN8]

Indeed, there was "no relevant connection" (see, People. v Ruiz, 18 AD3d 220, 221 [1st Dept 2005], leave denied, 5 NY3d 768) between the child's diary entries, which were composed prior to the incident, and the charges against the defendant. The defendant's determination to use those writings to raise an inference that the complainant in this case injured herself, was utterly "remote and speculative" (see, People v. Ruiz, id.).

Although the Court declined to open the gate to remote speculation, it did not bar the defense from questioning the complainant as to whether she harmed herself in the case at bar ^[FN9], as the defendant conceded during oral argument (see, the minutes dated August 3, 2010, pages 6- 7).

The adolescent's ruminations in her diary were plainly collateral to the central issue in this case, to wit, did the defendant cause the injuries suffered by the complainant on the date in question (see, the minutes, dated November 16, 2009, pages 529- 539). The "question of whether a matter is collateral or not must be determined under the particular circumstances of [*6]each case; no general principle can be laid down" (see, People v. Medina, 130 AD2d 515 [2nd Dept 1987], appeal denied, 70 NY2d 715 [1987]). On this record, in this case, the private, past reverie of the complainant was not relevant. This was not a case where the guilt of the defendant turned upon a single witness, with no other evidence. Aside from the clear and specific testimony of the complainant indicating that the defendant beat her with a metal cane and caused her injuries, there were inculpatory statements by the defendant, medical testimony and records regarding injury,^[FN10] and outcry witnesses. Clearly, the collateral utilization of the complainant's diary would not have cast any "substantial doubt on the validity of the charges" made by the complainant in this case (see, People v. Mandel, 48 NY2d 952, 953 [1979]). The Court stands by its ruling.^[FN11] See also, People v. Magrigor, 281 AD2d 561 [2nd Dept 2001], leave denied, 96 NY2d 802 [2001]; People v. Mandel, 48 NY2d 952 [1979].

The defendant's second argument in support of its motion to set aside the verdict is its claim that while conducting their direct examination of the complainant, the People opened the door to the issue of whether the complainant ever hurt herself in the past. The defense submits that they were then precluded on cross-examination from inquiring as to this issue. The Court finds no merit to this argument.

The minutes of the trial, dated November 17, 2009, at pages 663- 664 reflect the following questioning by the People of the complainant:

Question: "Do those pictures [the ones in the

medical report] show the injuries that [*7]

you received at the hands of the defendant

on October the 10th, 2007?"

Answer: "Yes."

Question: "Between the evening of October 10 when this

incident occurred, from that time up until

the point where these pictures were taken,

did you receive any other injuries to your

body?"

Answer: "No."

Question: "Did you inflict upon yourself any

additional injuries?"

Answer: "No."

Question: "So, were the injuries in thosephotographs, meaning the injury to your

forehead and the bruises that were shown

for your both arms and both legs. . .

were those injuries the result of you

being hit with a cane by the defendant?"

Answer:"Yes."

It is clear from this questioning that the People were not inquiring of the complainant as to whether she ever hurt herself in the past. The People were specifically referring to the injuries allegedly sustained by the complainant which underlie the instant indictment, on the date in question, and not to any prior injuries. The People did not open the door to the defense's purported issue, which was precluded by the Court, about whether the complainant caused harm to herself in the past.

A "trial court should decide door-opening issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" (see, People v. Massie, 2 NY3d 179, 184 [2004]); see also, People v. Melendez, 55 NY2d 445 [1982]).

The questioning of the complainant by the People was not [*8]incomplete or misleading to the jury, and no corrective action, by any party, was required. The People did not open the door to the precluded testimony, and the Court properly limited the cross-examination of the complainant by the defense as to alleged prior incidents of her harming herself.

Accordingly, the defendant's motion, to set aside the verdict on the ground that he was denied the opportunity to set forth his theory that the complainant's wounds were self-inflicted, is denied. This argument does not require a reversal or modification of the judgement against the defendant as a matter of law.

The defendant's next argument in support of his motion to set aside the verdict is that the Court erred when it ordered the defendant to physically turn over to the People the diary of the complainant, thereby preventing the defense from confronting the complainant with any inconsistent statements.

As discussed supra, before the trial, the defense came into possession of the complainant's diary. During the course of the trial, the People made an application to suppress the use of the diary, which was granted by the Court. The People also made a record that the diary is the complainant's property, and the Court indicated that complainant has a right to have her property returned to her (see, the minutes, dated November 12, 2009, pages 407- 418). After the diary was inspected by the People and the Court (it had previously been inspected by the defense) the Court ordered the People to retain the diary for safekeeping (see, the minutes, dated November 16, 2009, page 530). The Court directed that should the posture of the trial change, and the diary became relevant, it should be preserved, intact, for use by the parties.Initially, it must be stated that the defense counsel does not have a superior right of possession of the diary to that of the complainant. As the diary had been written in her own hand and belonged to her, she had the right to resume possession of it, and have it retained by the People. See, DiLorenzo v. General Motors Acceptance Corp., 29 AD3d 853 [2nd Dept 2006]; Pivar v. Graduate School of Figurative Art of the New York Academy of Art, 290 AD2d 212 [1st Dept 2002]. There was no error on the part of the Court in having the People hold the diary, to eventually be returned to the complainant, when it was no longer needed (see, the minutes, dated November 12, 2009, pages 414- 417).^[FN12] [*9]

As to the defense argument that because defense counsel was ordered to return the complainant's diary to her, the defense was prevented from using it on cross-examination to confront the complainant with any inconsistent statements, the Court finds this to likewise lack merit. The defense did not require continued physical possession of the diary during the complainant's testimony, as it had the opportunity for copious review of the complainant's diary over an extended period, had gratuitously placed many markings upon it, and was fully aware of its details. Had the complainant testified at variance with any aspect of the diary, it would certainly have been noted by defense counsel. It was not.

Furthermore, although the Court granted the People's application to suppress the use of the diary (see, the minutes, dated November 16, 2009, at page 530), the Court specifically granted the defense the right, should the trial posture change, to make an application to have the issue revisited (see, the minutes dated November 16, 2009, at pages 531, 536, 538- 539, 546- 547; minutes dated November 17, 2009, page 559). Had the defense felt that the complainant's testimony needed to be tested by confrontation with the diary, the Court had provided it with a mechanism, a motion made at sidebar (see, the minutes, dated November 16, 2009, at page 536), to do just that. No such application was made.

Accordingly, the defendant's motion to set aside the verdict by reason that defense counsel was directed to return the diary, is denied. The defendant was not deprived of a fair trial, and reversal or modification of the instant judgment on this ground is not required.

The defendant's final argument in support of his motion to

set aside the verdict is that the People were improperly permitted to cross-examine the defendant about his prior use of corporal punishment upon his children, despite investigations by ACS on this subject being closed and sealed.^[FN13]

During the defendant's testimony he was asked by his attorney if he inflicted the injuries in question upon his daughter, the complainant. The defendant replied, "Absolutely not, I love my daughter and I am always looking out for the interest of my children for the absolute reason. I would never inflict wound or injuries on any of my children" [sic] (emphasis added) (see, the minutes of November 20, 2009, page 1175, lines [*10]16- 21). The People then sought to question the defendant about corporal punishment, specifically investigations by ACS concerning prior occasions where the defendant allegedly inflicted corporal punishment. The Court permitted careful inquiry by the People about this topic, about the defendant's own conduct, not about sealed ACS determinations,^[FN14] ACS writings, or open investigations (see, the minutes, dated November 20, 2009, pages 1179- 1187; see also, pages 1206- 1229; minutes dated November 24, 2009, pages 1262- 1265; pages 1271- 1281; page 1293). The answers proffered by the defendant stood, and no extrinsic evidence was permitted to contradict him. Furthermore, the Court advised the jury, as it did repeatedly throughout the trial, that questions are not testimony, but it is the answer that constitutes the testimony.

It is clear from the defendant's answers during his testimony, as indicated by the minutes cited above, that the defendant opened the door to the issue about his past actions involving corporal discipline of his children. His testimony was palpably misleading to the jury, as he indicated that he never hit his children, when in fact the People had evidence which provided them with a good faith basis for questions and was arguably to the contrary. The cross-examination by the People of the defendant on this issue was cautiously conducted in a manner seeking merely to correct volunteered assertions by the defendant in which he had electively gone beyond the bounds of the conduct charged in the indictment. See, People v. Massie, 2 NY3d 179 [2004]); see also, People v. Melendez, 55 NY2d 445 [1982]). Furthermore, the Court agrees with the People's position that the defense apparently concluded that the defendant was not prejudiced during his cross-examination, in that it rejected the Court's offer to issue a limiting instruction on this topic (see, the minutes dated December 1, 2010, page 1709). Additionally, as the Court noted during oral argument conducted on this motion (see, the minutes, dated August 3, 2010, at pages 14 and 18), the jury in this case returned an extremely nuanced verdict. The jury obviously accepted many of the defendant's claims, in that the jury found him not guilty of the top count of the indictment, the felony of Assault in the Second Degree, and convicted him only of a misdemeanor. Clearly, he was not disadvantaged and did not suffer any prejudice by the People's cross-examination. Despite the defendant's arguments to the contrary, his trial was conducted fairly and impartially and in a manner that afforded him a fair opportunity to dispute the charges against him. [*11]Accordingly, the defendant's application to set aside the verdict on this ground must also be denied.^[FN15]

Based upon the above discussion, the Court finds that there are no grounds appearing in the instant record which requires a reversal or modification of the judgment that was entered in this case. Both sides were afforded a fair trial. The defendant's motion to set aside the instant verdict pursuant to CPL 330.30[1] is hereby denied in all respects.^[FN16] [*12]

This constitutes the decision and order of the Court.

This case shall go on to the sentencing stage in connection with which the parties are invited to submit particularized pre-sentence memoranda, and the victim is invited to address the Court at sentencing, upon the timely filing of an appropriate advance request by the People.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

.............................

WILLIAM M. ERLBAUM, J.S.C.