PEOPLE v. DAHLBENDER (2005)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Copertino, J.), rendered January 8, 2001, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court properly denied the defendant's motion to dismiss the indictment on the ground of an alleged violation of his right to testify before the grand jury.   As this court has stated, the plain meaning of CPL 190.50(5)(a) “compels the conclusion that the prosecutor had no duty to inform the defendant of his right to testify before the Grand Jury, as he was not arraigned in a local criminal court upon the felony complaint” (People v. Brooks, 247 A.D.2d 486, 669 N.Y.S.2d 294;  see People v. Brown, 14 A.D.3d 356, 789 N.Y.S.2d 106;  People v. Munoz, 207 A.D.2d 418, 419, 615 N.Y.S.2d 730).

 In addition, the defendant's challenge to the trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit.   The trial court's ruling struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the possible prejudice to him (see People v. Malave, 288 A.D.2d 237, 733 N.Y.S.2d 109;  People v. Scarpulla, 238 A.D.2d 359, 656 N.Y.S.2d 55).   The mere fact that the prior convictions into which inquiry was permitted were similar in nature to the instant offenses did not warrant their preclusion (see People v. Rahman, 46 N.Y.2d 882, 414 N.Y.S.2d 683, 387 N.E.2d 614;  People v. Hallingquest, 295 A.D.2d 364, 742 N.Y.S.2d 919).   A defendant is not shielded from impeachment because he specializes in one type of criminal activity (see People v. Pavao, 59 N.Y.2d 282, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Malave, supra;  People v. Sokolov, 245 A.D.2d 317, 667 N.Y.S.2d 263).

 The defendant's claim that he was denied a fair trial when the court permitted the prosecutor to introduce evidence of uncharged crimes and prior bad acts is not preserved for appellate review as the defendant failed to object to the alleged errors at trial (see CPL 470.05[2];  People v. Gagliardo, 307 A.D.2d 934, 762 N.Y.S.2d 890;  People v. Taylor, 302 A.D.2d 480, 754 N.Y.S.2d 893;  People v. Woodford, 259 A.D.2d 717, 688 N.Y.S.2d 167;  People v. Cody, 149 A.D.2d 722, 540 N.Y.S.2d 512).   In any event, the trial court properly admitted evidence of uncharged crimes committed by the defendant since they were inextricably interwoven with the narrative of events, and since it was necessary background information to explain to the jury the relationship between the defendant on the one hand, and the victim and a prosecution witness on the other hand (see People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320;  People v. Samlal, 292 A.D.2d 400, 738 N.Y.S.2d 594;  People v. Monzon, 289 A.D.2d 595, 735 N.Y.S.2d 810).

Further, the defendant's arguments regarding alleged prosecutorial misconduct during summation are largely unpreserved for appellate review (see CPL 470.05 [2];  People v. Rodriguez, 2 A.D.3d 464, 464-465, 767 N.Y.S.2d 820;  People v. Hirsch, 299 A.D.2d 559, 750 N.Y.S.2d 512;  People v. Mejias, 296 A.D.2d 583, 584, 745 N.Y.S.2d 726).   In any event, the challenged remarks constituted fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), were responsive to arguments presented in the defense counsel's summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), or were harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt of two counts of murder in the second degree beyond a reasonable doubt (see People v. Lambert, 272 A.D.2d 413, 709 N.Y.S.2d 189).   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.

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).