PEOPLE v. DIAZ (2007)

 Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25[3] [felony murder] ) and robbery in the first degree (§ 160.15[4] ).   Contrary to defendant's contention, County Court properly permitted, after a Ventimiglia hearing, evidence of a previous encounter involving defendant and the victim (see People v. Davis, 220 A.D.2d 682, 633 N.Y.S.2d 791, lv. denied 87 N.Y.2d 900, 641 N.Y.S.2d 230, 663 N.E.2d 1260).   Contrary to the further contention of defendant, the court properly refused to grant a mistrial and avoided any possible violation pursuant to People v. McNab, 167 A.D.2d 858, 562 N.Y.S.2d 590 by striking the testimony with respect to acts constituting an unindicted robbery, giving the jury curative instructions with respect to that testimony and, most importantly, instructing the jury that the People were required to prove only the elements of the indicted robbery in order to find defendant guilty of robbery and felony murder (see People v. Whitfield, 255 A.D.2d 924, 682 N.Y.S.2d 741, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 67, 716 N.E.2d 1112).   Also contrary to the contention of defendant, because there was no reasonable view of the evidence that defendant was merely present at the crime scene, the court properly refused to give a jury charge on accessorial liability (see CJI2d[N.Y.] Accessorial Liability [rev. Aug. 3, 2004] ).   We also reject the contention of defendant that the court erred in refusing to suppress his photograph taken by the police at the crime scene.   The police lawfully stopped defendant based on a founded suspicion that he had been involved in a crime (see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562), and the police obtained defendant's consent before taking the photograph.   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: