PEOPLE v. BRYANT (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered May 19, 2005, convicting him of murder in the second degree (two counts), robbery in the first degree, and tampering with physical evidence, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 There is no merit to the defendant's contentions that his rights to confrontation and a fair trial were violated when the trial court allowed the People to elicit hearsay statements that a nontestifying codefendant had made to a detective.   The defense counsel opened the door to such testimony (see People v. Simpson, 256 A.D.2d 205, 206, 682 N.Y.S.2d 376;  People v. Kourani, 256 A.D.2d 620, 622, 683 N.Y.S.2d 570).   In addition, the testimony at issue was not received for its truth, but, rather, to rebut the testimony of the defendant that his own confession was coercively derived (see Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425;  People v. Reynoso, 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Ewell, 12 A.D.3d 616, 617, 786 N.Y.S.2d 545;  People v. Garcia, 2 A.D.3d 321, 322, 768 N.Y.S.2d 606).   Further, the jury was pointedly instructed by the court twice that “the testimony is not being admitted for the truth,” and the jury is presumed to have followed such admonition (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710).

The defendant's contention that the evidence was legally insufficient to establish his guilt of intentional murder in the second degree is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   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 that the defendant intended to cause the death of the victim (see People v. Brown, 262 A.D.2d 569, 691 N.Y.S.2d 790;  People v. Hernandez, 257 A.D.2d 664, 665, 684 N.Y.S.2d 573;  People v. Angarita, 247 A.D.2d 397, 667 N.Y.S.2d 923).   Here, intent can be inferred from the defendant's conduct and the surrounding circumstances (see People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094).

 The defendant's contention that the prosecutor's allegedly improper questions during cross-examination and comments during summation constituted reversible error is unpreserved for appellate review (see CPL 470.05[2];  People v. Anderson, 24 A.D.3d 460, 805 N.Y.S.2d 655;  People v. Williams, 303 A.D.2d 772, 757 N.Y.S.2d 445).   In any event, the prosecutor's questioning of the defendant on cross-examination and suggestion during summation that he tailored his testimony after hearing the testimony of the prosecution's witnesses was not unduly prejudicial (see Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47;  People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127;  People v. Allien, 302 A.D.2d 468, 469, 753 N.Y.S.2d 738;  People v. Lowery, 281 A.D.2d 491, 491-492, 721 N.Y.S.2d 775).   Further, the prosecutor's attack on the credibility of the defendant was not unduly prejudicial and does not require reversal (see People v. Portalatin, 18 A.D.3d 673, 674, 795 N.Y.S.2d 334).

The defendant received the effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   Moreover, we reject the defendant's contention that the Supreme Court erred in directing that the term of imprisonment for robbery in the first degree run consecutively to the sentence imposed for intentional murder in the second degree (see People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   Although the conviction arose out of a single transaction, the record demonstrates that the robbery of the victim was separate and distinct from the subsequent act of killing the victim (see People v. Williams, 245 A.D.2d 400, 401, 666 N.Y.S.2d 452;  People v. Jackson, 237 A.D.2d 620, 621, 656 N.Y.S.2d 276;  People v. Hladky, 229 A.D.2d 400, 401, 645 N.Y.S.2d 74;  People v. Mayberry, 224 A.D.2d 549, 550, 638 N.Y.S.2d 147).

The defendant's challenge to his sentence as unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is unpreserved for appellate review (see People v. Crosby, 33 A.D.3d 719, 821 N.Y.S.2d 908, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 703, 862 N.E.2d 795;  People v. Stokes, 290 A.D.2d 71, 77, 736 N.Y.S.2d 781, cert. denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97) and, in any event, is without merit.   The Supreme Court did not engage in any fact-finding, but instead made a legal determination based on facts already found by the jury (see People v. Pritchett, 29 A.D.3d 828, 829, 814 N.Y.S.2d 281;  People v. Lloyd, 23 A.D.3d 296, 298, 805 N.Y.S.2d 20).

The defendants' remaining contentions are without merit.