Opinion
2018–09264 Ind. No. 1065/15
08-17-2022
The PEOPLE, etc., respondent, v. Alexander R. BONICH, appellant.
Patricia Pazner, New York, NY (Yvonne Shivers of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollak of counsel), for respondent.
Patricia Pazner, New York, NY (Yvonne Shivers of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Charles T. Pollak of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered June 18, 2018, convicting him of murder in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Following a jury trial, the defendant was convicted of murder in the second degree, criminal possession of a weapon in the second degree (two counts), and tampering with physical evidence (three counts) in connection with the shooting death of the victim in January 2015.
Contrary to the People's contention, the defendant's pretrial objection to the People's Molineux motion (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ) was sufficient to preserve for appellate review his contention that the Supreme Court improperly admitted evidence related to an unrelated prior attempted fraud (see People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Sheehan, 105 A.D.3d 873, 963 N.Y.S.2d 309 ; People v. Ayala, 142 A.D.2d 147, 166–167, 534 N.Y.S.2d 1005, affd 75 N.Y.2d 422, 554 N.Y.S.2d 412, 553 N.E.2d 960 ). However, the defendant's contention that the admission of the challenged evidence deprived him of a fair trial is without merit. Evidence of prior crimes or bad acts is inadmissible when it is proffered solely to establish an accused's propensity to commit a crime (see People v. Agina, 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913 ; People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919 ). Nonetheless, such evidence may be received to establish an element of the charged crime, or because it is relevant to some other material issue in the case (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915 ; People v. Molineux, 168 N.Y. at 291–294, 61 N.E. 286 ). If the proffered evidence is probative of a relevant issue, the court must then engage in a discretionary balancing of its probative value and the need for the evidence against the potential for prejudice to the defendant (see People v. Morris, 21 N.Y.3d 588, 595, 976 N.Y.S.2d 682, 999 N.E.2d 160 ; People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ). Here, the challenged evidence was relevant to the defendant's motive (see People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Franzese, 154 A.D.3d 706, 707, 61 N.Y.S.3d 661 ; People v. Perez–Olivo, 127 A.D.3d 1110, 1111, 6 N.Y.S.3d 299 ; People v. Thornton, 105 A.D.3d 779, 780, 962 N.Y.S.2d 627 ). Moreover, the probative value of this evidence outweighed its potential for prejudice (see People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ). Further, the court's limiting instructions to the jury served to alleviate any potential prejudice resulting from the admission of the evidence (see People v. Telfair, 198 A.D.3d 678, 683, 155 N.Y.S.3d 192 ; People v. Williams, 156 A.D.3d 827, 65 N.Y.S.3d 724 ). Accordingly, the court providently exercised its discretion in admitting the subject evidence. Contrary to the People's contention, the defendant's claim that certain documents recovered from the victim's belongings were admitted into evidence without being properly authenticated is preserved for appellate review (see CPL 470.05[2] ). However, contrary to the defendant's contention, the testimony presented by the People at trial was sufficient to authenticate the documents and warrant their admission into evidence (see People v. McGee, 49 N.Y.2d 48, 59–60, 424 N.Y.S.2d 157, 399 N.E.2d 1177 ; People v. Julian, 41 N.Y.2d 340, 342–343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; People v. Robinson, 187 A.D.3d 1216, 1217, 131 N.Y.S.3d 637 ; People v. Muirhead, 110 A.D.3d 833, 834, 972 N.Y.S.2d 681 ).
Contrary to the defendant's contention, the Supreme Court properly denied his request to submit manslaughter in the first degree to the jury as a lesser included offense of murder in the second degree. "A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry" ( People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; see People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). "First, the crime must be a lesser included offense" ( People v. Rivera, 23 N.Y.3d at 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ), meaning that "it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct" ( People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 ; see CPL 1.20[37] ). "Second, the party making the request for a charge-down ‘must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater’ " ( People v. Rivera, 23 N.Y.3d at 120, 989 N.Y.S.2d 446, 12 N.E.3d 444, quoting People v. Glover, 57 N.Y.2d at 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 ; see CPL 300.50[1] ; People v. Ranot, 194 A.D.3d 967, 968, 147 N.Y.S.3d 683 ). Here, the defendant established the first prong. However, viewing the record in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), there was no reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater offense (see People v. Rivera, 23 N.Y.3d at 124, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. Arjun, 188 A.D.3d 1235, 1237, 132 N.Y.S.3d 783 ; cf. People v. Hull, 27 N.Y.3d 1056, 1058, 35 N.Y.S.3d 284, 54 N.E.3d 1155 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BARROS, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.