PEOPLE v. THEN (2026)

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered September 16, 2022, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007];  see also People v. Baque, 43 NY3d 26 [2024] ).  Initially, we find no basis to disturb the jury's credibility determinations.  The jury had ample basis to conclude that defendant intended to kill the victim, and that he either directed or commanded other gang members who eventually stabbed the victim (see People v. Beniquez, 176 AD3d 406, 407 [1st Dept 2019], lv denied 34 NY3d 1075 [2019] ).  Multiple witnesses provided testimony concerning the command structure within the gang, and how, after another gang leader gave an order to kill rival members, defendant gave specific directions or commands to other gang members in furtherance of the gang's plan to kill a rival.  Contrary to defendant's contention, the evidence did not establish that he was merely present, but actively directing others involved in the killing.  There was also ample basis for the jury to conclude that the killing was part of this gang's plan rather than one individual's spontaneous decision (cf.  People v. May, 9 AD2d 508, 511–512 [1st Dept 1960] )

Defendant failed to preserve his current claims as to why the court improperly admitted videos of an incident two days before the murder, allowed the People to question witnesses about it, and issued a deficient jury instruction regarding the admission of the evidence (see People v. Cabrera, 188 AD3d 612, 613 [1st Dept 2020], lv denied 36 NY3d 1055 [2021];  People v. Cruz, 171 A.D.2d 607, 609 [1st Dept 1991], lv denied 78 NY2d 921 [1991] ).  We decline to consider these claims in the interest of justice.  Alternatively, we reject them on the merits.  The videos were probative of defendant's leadership position within the Sures set of the Trinitarios gang and his relationship with the other members (see People v. Bailey, 32 NY3d 70, 83 [2018] ).  Additionally, the prejudicial effect of the videos did not outweigh their probative value (see People v. Cass, 18 NY3d 553, 560 [2012] ).  As for prejudice, we note that the court gave the jury a limiting instruction, informing it that it may not consider the videos for purposes of proving propensity.  In any event, we find that any error was harmless because even without the videos of the prior incident, the evidence of defendant's guilt was overwhelming and “there is no significant probability ․ that the jury would have acquitted the defendant had it not been for the error” (People v. Pagan, 88 AD3d 37, 44–45 [1st Dept 2011], lv denied 17 NY3d 954 [2011] [internal quotation marks and citation omitted] ).

Defendant failed to preserve various evidentiary claims he now raises, including claims that testimony by police witnesses improperly bolstered the credibility of the cooperating witnesses and constituted inadmissible hearsay, that the court deprived defendant of his confrontation rights based on sustained objections to questions he posed to one of the cooperating witnesses during cross-examination, that the court improperly admitted testimony by police witnesses about the identities and actions of individuals on blurry videos, and that the court violated his state and federal constitutional due process rights by denying his motion to preclude a cooperator's discharge paperwork from the United States Army after the People disclosed it mid-trial (see People v. Brooks, 249 AD3d 640, 640 [1st Dept 2026];  People v. Santiago, 244 AD3d 543, 544 [1st Dept 2025], lv denied 45 NY3d 999 [2026];  People v. Brown, 237 AD3d 620, 622 [1st Dept 2025], lv denied 44 NY3d 992 [2025]; People v. Aguilar, 206 AD3d 572, 573 [1st Dept 2022], affd 41 NY3d 335 [2024];  People v. Gong, 30 AD3d 336, 336 [1st Dept 2006], lv denied 7 NY3d 812 [2006] ).  We decline to consider these claims in the interest of justice.  Alternatively, we reject them on the merits and find that the court properly admitted the challenged evidence and that, even if the court improperly did so, any error was harmless (see People v. Crimmins, 36 NY2d 230, 242 [1975] ).

Defendant also failed to preserve his claim that the court's admission of testimony from a police witness, qualified as a Trinitarios expert, violated Crawford v. Washington (541 U.S. 36 [2004] ) because it was based in part on out-of-court statements by gang members and intelligence officers, and we decline to consider this claim in the interest of justice.  Alternatively, we reject it on the merits.  As an expert, the witness was entitled to “apply[ ][his] expertise to otherwise inadmissible evidence because ․ the evidence [was] not being presented for the truth of the matter asserted” and, for the most part, the witness did not “communicate[ ] out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion” (United States v. Lombardozzi, 491 F3d 61, 72 [2d Cir2007] ).  In any event, any error was harmless because the two cooperating witnesses provided testimony about the Trinitarios that was largely the same or consistent with the testimony provided by the expert witness (see People v. Washington, 217 AD3d 532, 533 [1st Dept 2023], lv denied 40 NY3d 1082 [2023] ).

Defendant also failed to preserve his claim that comments by the prosecutor during opening and summation improperly appealed to the jury's sympathy (see People v. Brown, 99 N.Y.2d 488, 493 [2003] ), and we decline to consider this claim in the interest of justice.  Alternatively, we reject it on the merits.  The prosecutor's remarks were fair comment on the evidence or responsive to counsel's summation comments (see People v. Halm, 81 N.Y.2d 819, 821 [1993];  People v. Cooper, 99 AD3d 453, 455 [1st Dept 2012], lv denied 21 NY3d 1003 [2013] ).  Even if the prosecutor's comments were improper, they were “harmless in light of the overwhelming evidence of defendant's guilt” (People v. Scott, 172 AD3d 543, 543 [1st Dept 2019], lv denied 34 NY3d 954 [2019] ).

We perceive no basis for reducing the sentence.