PEOPLE v. FUENTES GONZALEZ (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

On August 7, 2009, at approximately 10:30 p.m., Jobani Reyes and Zach Rosales were walking home from a movie theater in Westbury when they passed a group of young men, including the defendant and the codefendant, standing on a street corner.  Reyes testified that as he and Rosales passed by the group, he heard the word “chevala,” which he understood as a derogatory Spanish term meaning “enemy” or “coward.”  Reyes further testified that immediately after he heard that word, the codefendant “lifted up his shirt and shows us [a] knife ․ [and] started saying, ‘la mara, la mara,’ ․ and was making gang signs [with his fingers].”  According to testimony from a Nassau County Police Department detective assigned to the “gang section” of the Special Investigations Squad, the term “la mara” refers to a gang which identifies itself as “MS–13,” and which is known to have a presence in the Westbury area.  The detective also testified that the term “la mara” is used by MS–13 gang members when they are involved in “a fight or assault[ ] ․ to let the person know that it is la mara doing it.”

Reyes and Rosales started running, and they were pursued by the defendant and the codefendant.  After Reyes and Rosales separated at a corner, the defendant and the codefendant caught up with Rosales.  Reyes returned to aid his friend, and witnessed the codefendant repeatedly stabbing Rosales with a knife as the defendant was beating Rosales with a belt.  While the defendant and the codefendant were standing over Rosales, a van driven by a friend of Rosales pulled up at the scene, whereupon Reyes observed the defendant and the codefendant flee the area.  Rosales subsequently died as a result of his stab wounds.

The jury found the defendant guilty of manslaughter in the first degree and criminal possession of a weapon in the fourth degree.  The defendant appeals from the judgment of conviction.

Contrary to the defendant's contention, he was not deprived of a fair trial by the prosecutor's references in her opening statement to the existence of local gangs in the area where the homicide occurred, or by her assertion that the defendant perceived Reyes and Rosales as enemies because they were not part of the MS–13 gang.  As we held on the codefendant's appeal, “[t]he references to gangs were relevant to the defendant's motive and intent in committing the homicide, and were necessary background to explain the sequence of events to the jury, and the prosecutor's opening remarks were supported, inter alia, by the testimony of the detective who was experienced in gang identification and gang lore” (People v. Sandoval, 100 A.D.3d 1025, 1027, 954 N.Y.S.2d 651;  see People v. Guerrero, 150 A.D.3d 883, 55 N.Y.S.3d 67;  People v. Guevara, 96 A.D.3d 781, 948 N.Y.S.2d 70;  People v. Ramirez, 23 A.D.3d 500, 501, 805 N.Y.S.2d 617;  People v. Oliver, 19 A.D.3d 512, 797 N.Y.S.2d 116;  People v. Filipe, 7 A.D.3d 539, 776 N.Y.S.2d 94;  People v. Newby, 291 A.D.2d 460, 738 N.Y.S.2d 355;  People v. Herrera, 287 A.D.2d 579, 731 N.Y.S.2d 653).  Further, “any prejudice was alleviated by the trial court's instruction to the jury that the prosecutor's references to gangs were merely what the People intended the proof to show at trial” (People v. Sandoval, 100 A.D.3d at 1027, 954 N.Y.S.2d 651;  see People v. Smart, 96 N.Y.2d 793, 726 N.Y.S.2d 343, 750 N.E.2d 45;  People v. Ramirez, 23 A.D.3d at 500, 805 N.Y.S.2d 617;  People v. Oliver, 19 A.D.3d at 513, 797 N.Y.S.2d 116;  People v. Newby, 291 A.D.2d at 460, 738 N.Y.S.2d 355).

The defendant's contention that the Supreme Court erred in admitting certain cell phone records into evidence at trial on the ground that the prosecution did not obtain those records in accordance with the Stored Communications Act (see 18 USC § 2703[d] ) is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, contrary to the defendant's contention, the record demonstrates that the prosecution properly obtained the cell phone records by court order issued pursuant to the Stored Communications Act (see People v. Rubin, 143 A.D.3d 846, 847, 39 N.Y.S.3d 74;  People v. Sorrentino, 93 A.D.3d 450, 451, 939 N.Y.S.2d 452).

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

BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.