Opinion
2013-04-10
The PEOPLE, etc., respondent, v. Robert SHEEHAN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
RANDALL T. ENG, P.J., THOMAS A. DICKERSON, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered May 13, 2011, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's general motion to dismiss, made at the close of the People's case, failed to preserve for appellate review his challenge to the legal sufficiency of the identification evidence against him ( seeCPL 470.05 [2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Jean–Marie, 67 A.D.3d 704, 704–705, 888 N.Y.S.2d 154). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;People v. Jean–Marie, 67 A.D.3d at 705, 888 N.Y.S.2d 154). 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).
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 ( see People v. De Bour, 40 N.Y.2d 210, 215, 386 N.Y.S.2d 375, 352 N.E.2d 562;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) the issue of whether the trial court properly allowed the People to elicit testimony from the complainant that, on prior occasions when the complainant saw the defendant walking around the neighborhood, the defendant appeared to be intoxicated. However, the defendant's contention that the admission into evidence of the challenged testimony deprived him of a fair trial is without merit. “Although evidence of prior crimes or bad acts is not admissible to show a defendant's predisposition to criminal conduct ( see People v. Molineux, 168 N.Y. 264, 291–293, 61 N.E. 286), such evidence is admissible when it is relevant to prove an element of the crime charged, and the probative value of the evidence outweighs the potential prejudice to the defendant” ( People v. Norman, 40 A.D.3d 1128, 1129, 837 N.Y.S.2d 694;see People v. Cass, 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918;People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919;People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735). “If the evidence of prior crimes is probative of a legally relevant and material issue before the court, and for that reason not automatically barred under the general rule, admissibility turns on the discretionary balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice” ( People v. Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808). “To determine whether Molineux evidence may be admitted in a particular case, the trial court must engage in the following two-part inquiry: first, the proponent of the evidence must identify some material issue, other than the defendant's criminal propensity, to which the evidence is directly relevant; once the requisite showing is made, the trial court must weigh the evidence's probative value against its potential for undue prejudice to the defendant. If the evidence has substantial probative value and is directly relevant to the purpose—other than to show criminal propensity—for which it is offered, the probative value of the evidence outweighs the danger of prejudice and the court may admit the evidence” ( People v. Cass, 18 N.Y.3d at 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [citations omitted] ).
We find that the trial court providently exercised its discretion in concluding that the probative value of the challenged testimony, which tended to explain how the complainant's prior observations of the defendant in the neighborhood enabled him to recognize the defendant during the subject robbery, outweighed its potential for undue prejudice to the defendant ( see People v. Cass, 18 N.Y.3d at 561, 942 N.Y.S.2d 416, 965 N.E.2d 918;People v. Townsend, 100 A.D.3d 1029, 1030, 954 N.Y.S.2d 221,lv. denied20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333;People v. Bernardez, 73 A.D.3d 1196, 1197, 901 N.Y.S.2d 699). We further find that any potential for prejudice from the testimony, which, as noted by the trial court, involved neither a prior crime nor a bad act, was limited by the court's appropriate limiting instructions as to the narrow purpose for which that evidence could be considered ( see People v. Townsend, 100 A.D.3d at 1031, 954 N.Y.S.2d 221;People v. Cockett, 95 A.D.3d 1230, 1231, 945 N.Y.S.2d 172;People v. Bernardez, 73 A.D.3d at 1197, 901 N.Y.S.2d 699).
While we agree with the defendant that certain of the prosecutor's remarks during summation improperly denigrated defense counsel ( see People v. Davis, 39 A.D.3d 873, 875, 835 N.Y.S.2d 311;People v. Torres, 223 A.D.2d 741, 742, 637 N.Y.S.2d 214), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury ( see People v. Rayford, 80 A.D.3d 780, 781, 916 N.Y.S.2d 603;People v. Alexander, 50 A.D.3d 816, 817, 857 N.Y.S.2d 165;People v. DeFigueroa, 182 A.D.2d 772, 773, 582 N.Y.S.2d 496), directing that the jury disregard these remarks, and explaining why the remarks were improper.
The remaining challenges to the prosecutor's remarks during summation are unpreserved for appellate review since defense counsel failed to object to these remarks or made only general objections, and these remarks were not the basis of his motion for a mistrial ( see People v. Read, 97 A.D.3d 702, 703, 947 N.Y.S.2d 614;People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603). In any event, these remarks were within the broad bounds of rhetorical comment permissible in closing arguments, and constituted fair response to arguments made by defense counsel in summation, or fair comment on the evidence ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885;People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564;People v. Kennedy, 101 A.D.3d 1045, 956 N.Y.S.2d 185;People v. Caba, 101 A.D.3d 896, 954 N.Y.S.2d 909).