| People v Cruz |
| 2007 NY Slip Op 09599 [46 AD3d 567] |
| December 4, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Carlos Cruz, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest,J.), rendered November 22, 2004, convicting him of murder in the second degree, attemptedmurder in the second degree, assault in the second degree, reckless endangerment in the firstdegree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was tried jointly with his codefendant Antonio Flores. Since the probativevalue of the expert testimony regarding the customs and practices of Mexican-American gangs,which was relevant to the defendant's motive and provided a necessary background, outweighedany prejudice to the defendant, the Supreme Court providently exercised its discretion inadmitting it (see People v Flores, 46 AD3d 570 [2007]; People v Filipe, 7 AD3d 539[2004]; People v Newby, 291 AD2d 460 [2002]).
The defendant's contention that he was deprived of a fair trial by the prosecutor's allegedlyimproper summation comments is unpreserved for appellate review (see People v Williams, 38 AD3d925 [2007]; People vCampbell, 29 AD3d 601 [2006]). In any event, the defendant's contention is withoutmerit because the comments constituted fair comment on the evidence (see People vAshwal, 39 NY2d 105 [1976]; People v Rabady, 28 AD3d 794 [2006]).
The Supreme Court properly imposed consecutive terms of imprisonment for the [*2]defendant's murder, attempted murder, and assault convictions(see People v Flores, 46 AD3d 570 [2007]). The defendant's claim thatthe procedure by which the Supreme Court determined that he was eligible for consecutive termsof imprisonment violated the principles of Apprendi v New Jersey (530 US 466 [2000])is unpreserved for appellate review and, in any event, is without merit (see People v Pritchett, 29 AD3d828 [2006]). Moreover, the sentence imposed was not excessive (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Schmidt, J.P., Skelos and Fisher, JJ.,concur.
Goldstein, J. (concurring in the result): On December 21, 2003 and in the early morninghours of December 22, 2003, the complainants and the decedent attended a private party foradults and children. At the trial, one of the complainants, who was born in Mexico and was amember of the street gang "the Sombras" in Mexico, testified that at some point during the party,he asked the disc jockey to shout out "Sombras" to greet other members of the Sombras at theparty, and the disc jockey complied with his request. There is no evidence in the record as to thetime when this occurred.
The other complainant testified that he saw the defendant, Carlos Cruz, at the party"[d]rinking, smoking" and going "to the bathroom." He did not specify when he saw thedefendant.
At around 2:00 a.m. the complainants and the decedent left the party. They were walking tothe car that brought them to the party when shots were fired, wounding both complainants andkilling the decedent. The defendant and his codefendant Antonio Flores, who were pursued bythe police as they fled the scene and were arrested for the instant crimes, were reputedly membersof a gang which was a rival to the Sombras.
At the trial, expert testimony was admitted with respect to the "customs and identification ofgang members within the Mexican community." The expert testified that while family gatheringsare usually nonviolent, in New York City and parts of New Jersey, they can become violent whengang members "know the DJ there or . . . will grab the DJ's microphone and. . . shout out their gang. If there is a rival gang member there, there will be somesort of . . . violence." The expert testified that in New York City in the late 1990'sthere were around seven homicides in New York City where a party was interrupted by a "shoutout" over the microphone and a rival gang was present. He further testified that, often, the victimis an innocent bystander. This testimony was admitted over objection to show the defendant'smotive.
In my view, this testimony about violence attributable to a disc jockey calling out the nameof a gang at a party was inadmissible on the ground that no foundation was laid for suchtestimony. There is no evidence in the record as to when the disc jockey called out "Sombras" orwhether the defendants were present when the disc jockey called out "Sombras" (see People v Silva, 41 AD3d 321,322 [2007]; People v Goldberg, 146 App Div 335 [1911]). There is no evidence in therecord as to the length of time between the disc jockey shouting out "Sombras" and the shooting,or that the defendant ever heard the disc jockey shout out "Sombras."[*3]
However, under the circumstances of this case, andconsidering the overwhelming evidence of guilt, the error was harmless. Accordingly, I agree thatthe judgment should be affirmed.