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

The PEOPLE of the State of New York, Respondent, v. Persio MARTE, Defendant-Appellant.

Decided: May 20, 2004

BUCKLEY, P.J., ANDRIAS, SAXE, LERNER, FRIEDMAN, JJ. Office of the Appellate Defender, New York (Richard M. Greenberg of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (John A.K. Bradley, J.), rendered January 16, 1997, convicting defendant, after a jury trial, of murder in the second degree (two counts), criminal use of a firearm in the first degree, robbery in the first degree, and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 15 years to life, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's accomplice liability could be reasonably inferred from a chain of events occurring before, during and after the crime (see People v. Cabey, 85 N.Y.2d 417, 626 N.Y.S.2d 20, 649 N.E.2d 1164).   In particular, at the time of the crime, “[d]efendant's conduct, and that of the others, made little sense unless defendant was a participant and not a spectator” (People v. Quero, 306 A.D.2d 35, 761 N.Y.S.2d 34, lv. denied 100 N.Y.2d 623, 767 N.Y.S.2d 407, 799 N.E.2d 630).   Defendant did not react to the shooting of his supposed friend by trying to help him, but by immediately assisting another person in shoving the victim's body underneath a park bench and then walking away from the scene closely behind the gunman, who had stolen the victim's shoulder bag.   In addition, there was evidence establishing, among other things, defendant's possible motive and his subsequent possession of the victim's wallet and other items.

 The challenged rulings concerning defense offers of proof were proper exercises of discretion that did not adversely affect defendant's right to present a defense (see Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636).   The court properly ruled that if defendant, in an effort to show his good relationship with the victim, introduced evidence that he had posted bail for the victim in the past, this would open the door to evidence warranting the inference that defendant did so, not simply out of friendship, but because the victim was his partner in drug trafficking, hardly the type of relationship that would rule out any enmity between them (see People v. DeLucia, 302 A.D.2d 280, 754 N.Y.S.2d 637, lv. denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44;  People v. Rosario, 298 A.D.2d 244, 748 N.Y.S.2d 153).   The court properly precluded the defense from eliciting testimony about the circumstances under which the victim had been fired from his job as a building superintendent, since counsel offered nothing but speculation that unnamed persons might have wanted to kill the victim because he had cheated them out of some money (see People v. Stern, 226 A.D.2d 238, 240, 641 N.Y.S.2d 248, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355;  People v. Coleman, 186 A.D.2d 509, 589 N.Y.S.2d 414, lv. denied 81 N.Y.2d 787, 594 N.Y.S.2d 733, 610 N.E.2d 406).

 The court properly exercised its discretion in receiving testimony that defendant possessed a nine millimeter pistol one and a half months prior to the crime, since this evidence was relevant to establishing defendant's involvement in the murder, on the theory that he supplied the weapon used by the actual assailant, which was also apparently a nine millimeter pistol (see People v. Del Vermo, 192 N.Y. 470, 478-482, 85 N.E. 690;  People v. Bonnemere, 308 A.D.2d 418, 764 N.Y.S.2d 823, lv. denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898;  People v. Jimenez, 267 A.D.2d 60, 700 N.Y.S.2d 123, lv. denied 94 N.Y.2d 921, 708 N.Y.S.2d 361, 729 N.E.2d 1160).   The People were not required to establish that there was anything unusual about a nine millimeter pistol, and the probative value of this evidence outweighed any prejudicial effect.

Defendant's lineup identification was not obtained in violation of his right to counsel (see Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 32 L.Ed.2d 411;  People v. Wilson, 89 N.Y.2d 754, 758, 658 N.Y.S.2d 225, 680 N.E.2d 598;  cf. People v. Grant, 91 N.Y.2d 989, 991, 676 N.Y.S.2d 117, 698 N.E.2d 946;  People v. Robles, 72 N.Y.2d 689, 699, 536 N.Y.S.2d 401, 533 N.E.2d 240).