| People v Marji |
| 2007 NY Slip Op 06719 [43 AD3d 961] |
| September 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ayman Marji, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered December 8, 2005, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the People to elicitevidence of prior bad acts involving the victim and the defendant. The evidence was properlyadmitted as relevant background material to enable the jury to understand the defendant'srelationship with the victim and to establish the defendant's motive and intent in the commissionof the charged crimes (see People v Cook, 93 NY2d 840 [1999]; People v Alvino,71 NY2d 233 [1987]; People vMelendez, 8 AD3d 680, 681 [2004]; People v Gordon, 308 AD2d 461 [2003];People v Jones, 289 AD2d 257 [2001]). Moreover, the probative value of that evidenceoutweighed any prejudice to the defendant, particularly in light of the court's cautionaryinstructions that the evidence was to be considered only on the issue of the defendant's motiveand intent to commit the charged crimes (see People v Melendez, supra; People v Williams,296 AD2d 560 [2002]). Accordingly, the Supreme Court providently exercised its discretionin admitting that evidence.
Moreover, the court properly exercised its discretion in admitting negative identificationevidence. This evidence was relevant to the issue of the identifying witness's reliability, and itsprobative value was not outweighed by any potential for prejudice (see People v [*2]Wilder, 93 NY2d 352, 357-358 [1999]; People v Bolden,58 NY2d 741, 743-744 [1982]).
The defendant has not preserved for appellate review his contention that the policedetectives' testimony regarding another witness's identification of him as the perpetrator of thecharged crimes constituted improper bolstering (see People v Nanton, 18 AD3d 671, 672 [2005]; People vVictor, 271 AD2d 556 [2000]). In any event, the defendant opened the door to the testimonyand, therefore, the testimony did not constitute improper bolstering (see People v Norris, 5 AD3d 796,797 [2004]; People v Martinez, 1AD3d 611 [2003]).
The defendant's contention that he was deprived of his right to confront witnesses againsthim is also unpreserved for appellate review (see CPL 470.05 [2]; People v Rodriguez, 28 AD3d 496[2006]; People v Cato, 22 AD3d863 [2005]). In any event, the prosecution was properly permitted to question the policedetectives about the knowledge they derived from other persons for the nonhearsay purpose ofrebutting the defense argument that the police had conducted a biased and incompetentinvestigation of the charged crimes, which opened the door to such testimony (see People v Reynoso, 2 NY3d820, 821 [2004]; People v Bryant,39 AD3d 768 [2007]; People vEwell, 12 AD3d 616, 617 [2004]; People v Ruis, 11 AD3d 714, 714-715 [2004]). Further, the jurywas repeatedly instructed by the court that the testimony was offered "not for the truth," and thejury is presumed to have followed such instruction (see People v Davis, 58 NY2d 1102,1103 [1983]).
The defendant's remaining contentions are without merit. Spolzino, J.P., Skelos, Lifson andBalkin, JJ., concur.