PEOPLE v. CAVER

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

The PEOPLE, etc., Respondent, v. William CAVER, a/k/a Deshawn Borton, Appellant.

Decided: February 24, 2003

FRED T. SANTUCCI, J.P., NANCY E. SMITH, HOWARD MILLER and THOMAS A. ADAMS, JJ. Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 29, 2000, convicting him of manslaughter in the second degree and attempted robbery in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant, who was charged with murder, argues that the court should not have allowed into evidence the fact that certain witnesses knew his nickname, which was “Bloody Bad Ass.” However, this evidence, which was “highly probative” with regard to the question of their ability to identify him as the perpetrator, was properly allowed (People v. Louis, 192 A.D.2d 558, 559, 596 N.Y.S.2d 104;  see People v. Candelario, 198 A.D.2d 512, 605 N.Y.S.2d 931).   To the extent that the defendant argues that he was prejudiced by the prosecutor's repeated references to his nickname (see People v. Lauderdale, 295 A.D.2d 539, 746 N.Y.S.2d 163), that argument is not preserved for appellate review (see CPL 470.05[2];  People v. Diaz, 235 A.D.2d 236, 652 N.Y.S.2d 509).   In any event, while we agree that this was improper, we conclude that under the circumstances, where the evidence of the defendant's guilt was overwhelming, and where the court instructed the jury not to consider the nickname as evidence of guilt, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Santiago, 255 A.D.2d 63, 691 N.Y.S.2d 22;  People v. Diaz, supra at 236, 652 N.Y.S.2d 509).

The defendant's challenges to various remarks made by the prosecutor during her summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Oreckinto, 253 A.D.2d 896, 678 N.Y.S.2d 521).   In any event, the challenged comments were either within the bounds of permissible rhetoric (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885), constituted fair comment on the evidence presented (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564), or were harmless under the circumstances (see People v. Crimmins, supra at 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The sentencing court properly imposed consecutive sentences (see People v. Ramirez, 89 N.Y.2d 444, 654 N.Y.S.2d 998, 677 N.E.2d 722;  People v. Lewis, 268 A.D.2d 249, 701 N.Y.S.2d 43).

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