PEOPLE v. MORALES (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered September 19, 2012, convicting him of murder in the second degree 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.

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.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Evidence of uncharged crimes is inadmissible when it is proffered solely to establish an accused's propensity to commit a crime (see People v. Agina, 18 N.Y.3d 600, 603, 942 N.Y.S.2d 411, 965 N.E.2d 913;  People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919;  People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Fiore, 34 N.Y.2d 81, 84, 356 N.Y.S.2d 38, 312 N.E.2d 174).  However, such evidence may be received to establish an element of the charged crime, or because it is relevant to some other material issue in the case (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;  People v. Alvino, 71 N.Y.2d at 241, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915;  People v. Allweiss, 48 N.Y.2d 40, 46–47, 421 N.Y.S.2d 341, 396 N.E.2d 735;  People v. Molineux, 168 N.Y. 264, 291–294, 61 N.E. 286).  If the proffered evidence is probative of a relevant issue, the court must then engage in a discretionary balancing of its probative value and the need for the evidence against the potential for prejudice to the defendant (see People v. Morris, 21 N.Y.3d 588, 595, 976 N.Y.S.2d 682, 999 N.E.2d 160;  People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;  People v. Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Allweiss, 48 N.Y.2d at 47, 421 N.Y.S.2d 341, 396 N.E.2d 735).  Here, the challenged evidence was relevant to the defendant's motive, provided necessary background information, and placed the charged conduct in context (see People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;  People v. Till, 87 N.Y.2d 835, 836–837, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. Diaz, 158 A.D.3d 639, 67 N.Y.S.3d 850;  People v. Williams, 27 A.D.3d 673, 811 N.Y.S.2d 124).  Moreover, the probative value of this evidence outweighed its potential for prejudice (see People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263).  Accordingly, the Supreme Court providently exercised its discretion in admitting the subject evidence.

The defendant's challenges to the Supreme Court's limiting instruction with respect to the People's Molineux evidence are unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.  The court's limiting instruction, which was timely given and was repeated during the court's final charge to the jury, “ensured that the evidence was used in the proper fashion, and for the proper purpose” (People v. Delarosa, 84 A.D.3d 832, 834, 922 N.Y.S.2d 188).

The defendant's contention that certain challenged testimony constituted improper bolstering is unpreserved for appellate review, as the defendant did not object to the testimony on this ground (see CPL 470.05[2];  People v. Garcia, 165 A.D.3d 976, 976–977, 83 N.Y.S.3d 909;  People v. Moore, 89 A.D.3d 769, 769–770, 931 N.Y.S.2d 886;  People v. Bryan, 50 A.D.3d 1049, 1050, 856 N.Y.S.2d 227).  In any event, the challenged testimony was properly admitted and did not constitute improper bolstering (see People v. Spicola, 16 N.Y.3d 441, 452–453, 922 N.Y.S.2d 846, 947 N.E.2d 620;  People v. Buie, 86 N.Y.2d 501, 510–511, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Moore, 89 A.D.3d at 769–770, 931 N.Y.S.2d 886).  The defendant's claim of ineffective assistance of counsel based on his attorney's failure to object to the purportedly bolstering testimony is without merit (see People v. Cutting, 150 A.D.3d 873, 875, 56 N.Y.S.3d 315;  People v. Smith, 135 A.D.3d 970, 971, 23 N.Y.S.3d 391;  People v. Watson, 121 A.D.3d 921, 922, 993 N.Y.S.2d 384).

The defendant's contention that the Supreme Court erred in precluding his attorney from questioning an eyewitness about an alleged inconsistent omission of fact made by him in the grand jury proceeding is without merit.  Under the circumstances of this case, the court providently exercised its discretion in limiting the cross-examination of the eyewitness (see People v. Girald, 112 A.D.3d 650, 975 N.Y.S.2d 916;  People v. Reynolds, 83 A.D.3d 1098, 1099, 921 N.Y.S.2d 549;  People v. Selman, 55 A.D.3d 638, 638–639, 867 N.Y.S.2d 98).

The defendant's contention that certain comments made by the prosecutor in summation were improper and deprived him of a fair trial is largely unpreserved for appellate review (see CPL 470.05[2];  People v. Kaval, 154 A.D.3d 875, 876, 63 N.Y.S.3d 411).  In any event, the contention is without merit.  The challenged remarks were either fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564), a fair response to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885), or not so egregious as to have deprived the defendant of a fair trial (see People v. Wilson, 163 A.D.3d 881, 81 N.Y.S.3d 163).

The defendant's contention that he was denied due process by the substitution of another trial judge during jury deliberations is unpreserved for appellate review (see People v. Artist, 95 N.Y.2d 944, 945, 722 N.Y.S.2d 465, 745 N.E.2d 384;  People v. Thomas, 45 A.D.3d 483, 483–484, 847 N.Y.S.2d 160).  In any event, the contention is without merit, as is the defendant's claim that his attorney was ineffective for failing to object to the substitution.

The defendant's contention that he was deprived of his constitutional right to due process and a speedy trial by reason of the lapse of approximately 44 months between his arrest and the commencement of the trial is unpreserved for appellate review (see People v. Price, 150 A.D.3d 1153, 1153, 52 N.Y.S.3d 649;  People v. Worthy, 138 A.D.3d 1042, 1043, 30 N.Y.S.3d 260;  People v. Card, 107 A.D.3d 820, 968 N.Y.S.2d 803) and, in any event, without merit (see People v. Wiggins, 31 N.Y.3d 1, 9–10, 72 N.Y.S.3d 1, 95 N.E.3d 303;  People v. Decker, 13 N.Y.3d 12, 14–15, 884 N.Y.S.2d 662, 912 N.E.2d 1041).

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

SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.