PEOPLE v. ROSS (2025)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered April 8, 2009, as amended April 23, 2009, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree (two counts), and sentencing him to an aggregate term of 20 years, unanimously affirmed.

The court providently exercised its discretion in admitting evidence that, several years before the instant shooting, the victim participated in an altercation with one of defendant's friends, witnessed the murder of the friend, and was questioned by police.  This evidence was relevant to defendant's potential motive for attempting to kill the victim, and it was not outweighed by the potential for prejudice to defendant, as he was not involved in those prior incidents or associated with the alleged shooter (see People v. Frumusa, 29 N.Y.3d 364, 369–370, 57 N.Y.S.3d 103, 79 N.E.3d 495 [2017]).

However, the court improperly admitted evidence that defendant had a history of dealing drugs and associating with other drug dealers, as this was not relevant to the People's theory of motive, which was that defendant sought to avenge his friend after concluding that the victim was involved in his death (see People v. Weinstein, 42 N.Y.3d 439, 458, 223 N.Y.S.3d 531, 248 N.E.3d 691 [2024]).  Although such evidence is relevant when the potential motive arises directly from the defendant's involvement in the drug trade (see e.g. People v. Camarena, 289 A.D.2d 7, 734 N.Y.S.2d 14 [1st Dept. 2001], lv denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002];  People v. Mena, 269 A.D.2d 147, 148, 704 N.Y.S.2d 14 [1st Dept. 2000], lv denied 95 N.Y.2d 837, 713 N.Y.S.2d 144, 735 N.E.2d 424 [2000]), no evidence indicated that the victim was a rival drug dealer or that any specific drug transactions were relevant to the offense.

Nevertheless, the error in admitting this brief testimony was harmless, as the evidence of guilt was overwhelming, and there was no “significant probability” that the elicited “references to defendant's bad acts and negative associations affected the jury's verdict, or that the absence of such errors would have led to an acquittal” (People v. Rivers, 18 N.Y.3d 222, 227, 936 N.Y.S.2d 650, 960 N.E.2d 419 [2011];  see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).  The victim's testimony established his familiarity with defendant and the victim's opportunity to recognize him, and shortly after the shooting, he provided defendant's nickname and a description that enabled the officers to readily identify defendant as the suspect.  The People also proffered evidence of consciousness of guilt:  defendant left the area, altered his appearance, and provided a false name to police.

Defendant did not preserve most of his arguments that the prosecutor made improper remarks in summation, and we decline to review these claims in the interest of justice (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994]).  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 136–137, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).  The prosecutor permissibly argued that defense counsel's arguments failed to comport with common sense and the evidence adduced (see People v. Salaman, 231 A.D.2d 464, 465, 647 N.Y.S.2d 739 [1st Dept. 1996], lv denied 89 N.Y.2d 929, 654 N.Y.S.2d 731, 677 N.E.2d 303 [1996]), and the prosecutor's arguments regarding the victim's credibility were evidence-based and responsive to defense counsel's summation (see People v. Gonzalez, 298 A.D.2d 133, 134, 747 N.Y.S.2d 511 [1st Dept. 2002], lv denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002]).

We perceive no basis for reducing the sentence.