PEOPLE v. McLAURIN

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

The PEOPLE of the State of New York, Respondent, v. Isaac O. McLAURIN, Defendant-Appellant.

Decided: March 30, 2006

ANDRIAS, J.P., NARDELLI, WILLIAMS, SWEENY, McGUIRE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel A. Warshawsky of counsel), and Weil, Gotshal & Manges LLP, New York (Jennifer J. Rhodes of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Dimitri Maisonet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered June 29, 2001, convicting defendant, after a jury trial, of assault in the second degree and attempted assault in the first degree, and sentencing him to concurrent terms of 9 and 7 years, respectively, unanimously affirmed.

 The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).   The court precluded inquiry into two of the four prior violent acts the People alleged he had committed but permitted limited inquiry into two of the alleged prior acts;  if committed by defendant, those acts, neither of which was particularly similar to the instant charges, were more probative than prejudicial.   When defendant denied committing these acts, the court properly allowed the People to continue cross-examining defendant in an effort to induce him to change his testimony (see People v. Sorge, 301 N.Y. 198, 200, 93 N.E.2d 637 [1950] ), and this further inquiry did not exceed permissible limits.

 The court properly admitted both defendant's attempt to bribe prosecution witnesses as evidence of consciousness of guilt (see People v. Bonnemere, 308 A.D.2d 418, 764 N.Y.S.2d 823 [2003], lv. denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ), and his apology to the victims' mother as an admission (see People v. Dixon, 199 A.D.2d 332, 604 N.Y.S.2d 604 [1993], lv. denied 83 N.Y.2d 851, 612 N.Y.S.2d 383, 634 N.E.2d 984 [1994] ).   Neither of these items of evidence was unduly equivocal (see People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263 [1963] ), and in each instance, the probative value of the evidence outweighed its prejudicial effect.

 The court properly exercised its discretion in precluding cross-examination of the victims concerning the violent death of their cousin.   The court accorded defendant ample latitude in which to establish the victims' gang activity and present a theory that the instant crimes were actually committed by unidentified enemies of the victims.   However, the shooting death of the cousin had no possible connection with the instant incident, except by way of speculation (see People v. Fernandez, 13 A.D.3d 271, 274-5, 788 N.Y.S.2d 39 [2004], affd. 5 N.Y.3d 813, 803 N.Y.S.2d 22, 836 N.E.2d 1144 [2005] ).   Accordingly, defendant's right to present a defense was not violated (see Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).

We perceive no basis for reducing the sentence.