| People v Brooks |
| 2009 NY Slip Op 03846 [62 AD3d 511] |
| May 14, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Brooks, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), forrespondent.
Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered September 7,2007, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, asa persistent violent felony offender, to a term of 25 years to life, unanimously affirmed.
The trial court properly denied defendant's request for a missing witness charge with respectto the victim's cousin, an eyewitness to the shooting. Contrary to defendant's contention, theprosecution established that it made diligent but unsuccessful efforts to obtain the witness'stestimony, in that detectives spoke to the witness to urge him to cooperate, made trips to hishome, and delivered subpoenas (see People v Rivera, 249 AD2d 141 [1998], lvdenied 92 NY2d 904 [1998]; see also People v Savinon, 100 NY2d 192, 198-200[2003]). The People clearly established that their reasons for failing to call the witness were notstrategic, and that they did not "merely go through the motions of asking [the] witness to testify,"with the "ulterior goal of keeping the witness off the stand" (id. at 200). Defendant'srelated claim regarding the prosecutor's summation is unpreserved and we decline to review it inthe interest of justice. As an alternative holding, we also reject it on the merits.
The court properly admitted evidence of defendant's gang membership as probative ofmotive since it provided an explanation as to why defendant would harass and shoot the victim, amember of a rival gang (see e.g. Peoplev Wilson, 14 AD3d 463 [2005], lv denied 4 NY3d 857 [2005]). Regardless ofhow the court may have characterized its ruling, the connection between this evidence and theissue of motive is reflected in the People's application to admit the evidence, in the trialtestimony, and in the court's jury instruction.
The court also properly admitted evidence of four incidents of defendant's unchargedpossession of a pistol resembling the weapon used in this crime. In three of these incidents,defendant displayed the weapon in the presence of the victim. In addition to linking defendant tothe crime by showing he possessed the same type of weapon (see People v Marte, 7 AD3d 405, 407 [2004], lv denied 3NY3d 677 [2004]), this evidence also completed the narrative of events leading up to theshooting, explained the contentious relationship between defendant and the victim, and wasprobative of motive and intent (see e.g. People v Rochez, 289 AD2d 63 [2001],lv denied 97 NY2d 733 [2002]). Accordingly, we do not find that the number ofincidents or the level of [*2]detail elicited was excessive. Thecourt correctly weighed the probative value of the evidence against its prejudicial effect andminimized any prejudice by giving appropriate limiting instructions. Defendant has not shownthat he was prejudiced by the timing of those instructions (see People v Thomas, 26 AD3d 241 [2006], lv denied 6NY3d 898 [2006]). Concur—Mazzarelli, J.P., Saxe, Nardelli, Renwick and Freedman, JJ.