The People, etc., respondent, v. Jamar Holden, appellant. (2011)

Argued-February 18, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered August 15, 2008, convicting him of murder in the second degree, bribing a witness, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

“Evidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity” (People v. Dorm, 12 NY3d 16, 19;  see People v. Alvino, 71 N.Y.2d 233, 241).   Such evidence may be used where relevant, among other things, to prove motive or identity (see People v. Dorm, 12 NY3d at 19;  People v. Molineux, 168 N.Y. 264).   Additionally, such evidence may be allowed when it is needed as background material or to complete the narrative of the episode (see People v. Tosca, 98 N.Y.2d 660, 661;  People v. Till, 87 N.Y.2d 835, 837).  “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice” (People v. Dorm, 12 NY3d at 19;  see People v. Ventimiglia, 52 N.Y.2d 350, 359-360;  People v. Santarelli, 49 N.Y.2d 241, 250;  People v. Allweiss, 48 N.Y.2d 40, 47).   The evidence will be allowed if its probative value exceeds the potential for prejudice to the defendant (see People v. Cook, 93 N.Y.2d 840, 841;  People v. Alvino, 71 N.Y.2d at 242).

The Supreme Court providently exercised its discretion in determining that the probative value of the evidence in question outweighed the risk of prejudice to the defendant.   Since there was no witness to the actual shooting, the evidence was admissible to establish identity (see People v. Basir, 179 A.D.2d 662, 664).   The evidence also was admissible as probative of the defendant's motive, to provide necessary background information on the nature of the relationship between the defendant and the victim, and between the defendant and the key prosecution witness, the defendant's ex-girlfriend, and to place the charged conduct in context (see People v. Dorm, 12 NY3d at 19;  People v. Williams, 27 AD3d 673;  People v. Cain, 16 AD3d 431, 432;  People v. Newby, 291 A.D.2d 460;  People v. Band, 125 A.D.2d 683, 686).   In addition, the Supreme Court's limiting instruction to the jury served to alleviate any prejudice resulting from the admission of the evidence (see People v. Ramirez, 23 AD3d 500, 501;  People v. Newby, 291 A.D.2d at 461;  People v. Muniz, 248 A.D.2d 644, 645).

Likewise, the Supreme Court providently exercised its discretion in determining, in effect, that the victim's statement naming the defendant as the shooter was admissible as an excited utterance.   The statement was made moments after the victim, who later died of his wounds, had been shot twice, when he was bleeding profusely, calling for help, flailing his arms, and saying “please don't let me die.”   Under these circumstances, the statement was clearly “ ‘the product of the declarant's exposure to a startling or upsetting event that [was] sufficiently powerful to render the observer's normal reflective processes inoperative’ preventing the opportunity for deliberation and fabrication” (People v. Carroll, 95 N.Y.2d 375, 385, quoting People v. Vasquez, 88 N.Y.2d 561, 574;  see People v. Legere, AD3d, 2011 N.Y. Slip Op 01039 [2d Dept 2011];  People v. Marajdeen, 47 AD3d 949;  People v. Hasan, 17 AD3d 482;  People v. Corker, 309 A.D.2d 816, 817;  People v. West, 265 A.D.2d 354).   That the utterance was in response to an inquiry is “merely one factor bearing on spontaneity within the meaning of the excited utterance rule” (People v. Brown, 70 N.Y.2d 513, 519 [internal quotation marks and citation omitted] ) and, under the circumstances, did not affect the statement's admissibility (cf.  People v. Johnson, 1 NY3d 302, 307).

RIVERA, J.P., DICKERSON, ENG and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court