Opinion
15582 Ind. No. 3586/14 Case No. 2018–04279
03-24-2022
The PEOPLE of the State of New York, Respondent, v. Sebastian BENJAMIN, Defendant–Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), for respondent.
Kern, J.P., Moulton, Rodriguez, Pitt, Higgitt, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered July 12, 2018, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 17 years, unanimously affirmed.
The court providently exercised its discretion in admitting evidence of gang activity. The evidence, which included expert testimony regarding the history of a specific conflict between two gangs, a photo in which defendant made a gang sign accompanied by two known members of the gang, and a photo in which two members of the gang made the same sign in defendant's presence was "probative of motive since it provided an explanation as to why defendant would ... shoot the victim" ( People v. Brooks, 62 A.D.3d 511, 511, 878 N.Y.S.2d 730 [1st Dept. 2009], lv denied 12 N.Y.3d 923, 884 N.Y.S.2d 704, 912 N.E.2d 1085 [2009] ). Although defendant's confession also discussed his motive, his explanation made no sense except in the context of a gang rivalry. The evidence permitted the jury to draw a reasonable inference that defendant was, in fact, a member of the gang in question. The probative value of defendant's gang affiliation outweighed any prejudice, which was minimized by the court's limiting instructions (see People v. Bailey, 32 N.Y.3d 70, 83–84, 85 N.Y.S.3d 377, 110 N.E.3d 489 [2018] ). In any event, any error was harmless in light of the overwhelming evidence of guilt, including surveillance video footage and defendant's confession (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The court providently exercised its discretion in denying defendant's request for new counsel, after conducting the requisite "minimal inquiry" ( People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [2010] ). This inquiry, in which counsel assured the court she would be enhancing her communications with her client, adequately responded to defendant's complaints.
Defendant was not deprived of his right to be present at all material stages of his trial. Defendant's presence was not required at the discussion of his counsel's request to have separate juries at the joint trial of defendant and his codefendant, which "was a legal rather than a factual proceeding" ( People v. Velasquez, 44 A.D.3d 412, 412, 843 N.Y.S.2d 253 [1st Dept. 2007], lv denied 9 N.Y.3d 1040, 852 N.Y.S.2d 25, 881 N.E.2d 1212 [2008] [oral argument on severance motion]). There is no reason to believe that defendant could have had any meaningful input (see People v. Fabricio, 3 N.Y.3d 402, 787 N.Y.S.2d 219, 820 N.E.2d 863 [2004] ; People v. Velasco, 77 N.Y.2d 469, 473, 568 N.Y.S.2d 721, 570 N.E.2d 1070 [1991] ), especially where counsel had made the decision, in her professional judgment (see generally People v. Colville, 20 N.Y.3d 20, 955 N.Y.S.2d 799, 979 N.E.2d 1125 [2012] ), to accept a two-jury trial rather than a severance.
We perceive no basis for reducing the sentence.