Opinion
2017–06723 Ind. No. 6136/14
08-25-2021
The PEOPLE, etc., respondent, v. Tristan N. ANDERSON, appellant.
Patricia Pazner, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Cindy L. Horowitz, and Abed Z. Bhuyan of counsel), for respondents.
Patricia Pazner, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Cindy L. Horowitz, and Abed Z. Bhuyan of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, BETSY BARROS, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew Sciarrino, J.), rendered May 1, 2017, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court did not err in permitting the admission into evidence of the defendant's prior arrest for strangulation of the victim, as the evidence provided the necessary background as to the relationship between the defendant and the victim and completed the narrative of the investigation (see People v. Smith, 186 A.D.3d 1269, 1270, 127 N.Y.S.3d 887 ; People v. Graham, 159 A.D.3d 1022, 1023, 73 N.Y.S.3d 587 ). Furthermore, the probative value of the evidence outweighed the risk of prejudice to the defendant, and the court's limiting instructions to the jury served to alleviate any prejudice from the admission of that evidence (see People v. Nieves, 186 A.D.3d 1260, 1261, 127 N.Y.S.3d 882 ; People v. Gross, 172 A.D.3d 741, 742, 99 N.Y.S.3d 367 ).
The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during the People's opening statement and summation is unpreserved for appellate review since the defendant failed to object to the remarks at issue (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Beer, 146 A.D.3d 895, 897, 47 N.Y.S.3d 38 ). In any event, most of the challenged remarks were proper because they were within the broad bounds of rhetorical comment permissible in closing arguments, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence (see People v. Quezada, 116 A.D.3d 796, 798, 983 N.Y.S.2d 326 ). Additionally, the challenged portion of the opening statement was not improper since it was consistent with the evidence the People proceeded to present (see People v. Wallace, 123 A.D.3d 1151, 1152, 997 N.Y.S.2d 756 ). To the extent that certain remarks were improper, they did not deprive the defendant of a fair trial, and defense counsel's failure to object to those remarks did not constitute ineffective assistance of counsel (see People v. Hawley, 112 A.D.3d 968, 969, 977 N.Y.S.2d 391 ).
Contrary to the defendant's contention in his pro se supplemental brief, the Supreme Court properly denied his motion to reopen the suppression hearing (see CPL 710.40[4] ; People v. Lawrence , 180 A.D.3d 1070, 1071–1072, 120 N.Y.S.3d 391 ). Moreover, to the extent the defendant argues that the notes within the memo books at issue were favorable to him, his contention is based on matters dehors the record and cannot be reached on direct appeal (see People v. Petion , 186 A.D.3d 1410, 1411, 129 N.Y.S.3d 529 ; People v. Redmon , 184 A.D.3d 775, 776, 124 N.Y.S.3d 210 ).
The defendant's remaining contentions are without merit.
CHAMBERS, J.P., MILLER, BARROS and IANNACCI, JJ., concur.