PEOPLE v. CAIN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Lance CAIN, Defendant-Appellant.

Decided: March 29, 2005

BUCKLEY, P.J., TOM, SAXE, FRIEDMAN, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, Kew Gardens (Jeffrey I. Richman of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Jillian E. Wieder of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered April 23, 2003, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him to concurrent terms of 25 years to life and 15 years, respectively, unanimously affirmed.

 The court properly exercised its discretion in admitting testimony from the surviving victim and from an expert witness concerning defendant's membership in the Bloods gang, as well as the customs, hierarchies and violent practices of the Bloods.   This evidence was highly probative of defendant's motive, as well as his accessorial liability for the acts of the person who actually shot the victims, in that the evidence was critical to the jury's understanding of the relationship among defendant, the victims, and the gunman (see e.g. People v. Wilson, 14 A.D.3d 463, 788 N.Y.S.2d 383 [2005];  People v. Edwards, 295 A.D.2d 270, 743 N.Y.S.2d 872 [2002], lv. denied 99 N.Y.2d 557, 754 N.Y.S.2d 209, 784 N.E.2d 82 [2002];  People v. Chebere, 292 A.D.2d 323, 740 N.Y.S.2d 25 [2002], lv. denied 98 N.Y.2d 673, 774 N.E.2d 227 [2002] ).   The evidence was not inflammatory, and the court's thorough instructions minimized any potential for prejudice.   The court also took sufficient curative measures when the People introduced evidence that went beyond the court's advance ruling.

 Although evidence of the surviving victim's lineup identification of the separately tried second perpetrator was irrelevant (see People v. Jenkins, 305 A.D.2d 287, 758 N.Y.S.2d 810 [2003], lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ), the court provided extensive limiting instructions that prevented any prejudice.

 The prosecutor's brief and isolated summation reference to testimony that had been stricken from the record does not warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).