Opinion
2014–01365 Ind. No. 10416/11
09-19-2018
The PEOPLE, etc., respondent, v. Andre MOORE, appellant.
The Legal Aid Society, New York, N.Y. (William B. Carney, New York, of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Julian Joiris of counsel), for respondent.
The Legal Aid Society, New York, N.Y. (William B. Carney, New York, of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Julian Joiris of counsel), for respondent.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. DelGiudice, J.), rendered January 15, 2014, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, assault in the second degree, and robbery in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree, to a determinate term of imprisonment of 10 years on the conviction of attempted murder in the second degree, to determinate terms of imprisonment of 5 years on the convictions of criminal possession of a weapon in the second degree, assault in the second degree, and robbery in the second degree, with all terms to run consecutively, except the terms for murder in the second degree and criminal possession of a weapon in the second degree, which are to run concurrently.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that all sentences shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting the convictions (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt on each of the convictions beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court improperly admitted testimony regarding the defendant's gang, a rival gang, and a posting from the Facebook page of one of the defendant's gang's members. In any event, the contention is without merit. Such evidence constituted background on the gangs' purpose and was probative of motive, and the probative value of the evidence outweighed the risk of prejudice to the defendant (see People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 ; People v. Giuca, 58 A.D.3d 750, 871 N.Y.S.2d 709 ; People v. Washington, 28 A.D.3d 335, 812 N.Y.S.2d 525 ; People v. Elder, 12 A.D.3d 379, 786 N.Y.S.2d 184 ; People v. Edwards, 295 A.D.2d 270, 743 N.Y.S.2d 872 ). Moreover, the court's limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence (see People v. Beer, 146 A.D.3d 895, 47 N.Y.S.3d 38 ; People v. Holden, 82 A.D.3d 1007, 918 N.Y.S.2d 773 ).
The defendant failed to preserve for appellate review his contention that the Supreme Court improperly curtailed the scope of cross-examination of a police detective about an action commenced against that witness for allegedly using excessive force in the line of duty (see CPL 470.05[2] ). In any event, any error regarding the scope of cross-examination was harmless, as there was overwhelming evidence of the defendant's guilt, and no reasonable possibility that the error might have contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Wallace, 60 A.D.3d 1268, 1270, 875 N.Y.S.2d 353 ; People v. Batista, 113 A.D.2d 890, 891, 493 N.Y.S.2d 608 ).
The defendant's further contention that the Supreme Court's curtailment of his cross-examination of both a police witness and a civilian witness constituted a violation of his right of confrontation and to present a defense is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the contention is without merit. "The nature and extent of cross-examination is subject to the sound discretion of the Trial Judge" ( People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642, remittitur amended 24 N.Y.2d 914, 301 N.Y.S.2d 644, 249 N.E.2d 483 ; see People v. Kinard, 215 A.D.2d 591, 626 N.Y.S.2d 858 ). Here, the court providently exercised its discretion in limiting the defense's cross-examination of the witnesses, because the defense's line of inquiry would have elicited inadmissible hearsay testimony (see People v. Romero, 78 N.Y.2d 355, 575 N.Y.S.2d 802, 581 N.E.2d 1048 ; People v. Burns, 122 A.D.3d 1435, 996 N.Y.S.2d 842 ). Furthermore, insofar as the court afforded defense counsel the opportunity to contradict answers given by the witnesses to show bias, interest, or hostility, the defendant was afforded his right of confrontation (cf. People v. Diaz, 85 A.D.3d 1047, 926 N.Y.S.2d 128, affd 20 N.Y.3d 569, 965 N.Y.S.2d 738, 988 N.E.2d 473 ; People v. Vigliotti, 203 A.D.2d 898, 611 N.Y.S.2d 413 ).
The sentences imposed were excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
ROMAN, J.P., SGROI, MALTESE and LASALLE, JJ., concur.