| People v Mena |
| 2010 NY Slip Op 01882 [71 AD3d 475] |
| March 11, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v PedroMena, Appellant. |
—[*1]
Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 9,2008, convicting defendant, after a jury trial, of attempted murder in the second degree, assaultin the first degree, criminal possession of a controlled substance in the third and fourth degreesand two counts of criminal possession of a weapon in the second degree, and sentencing him, asa second violent felony offender, to an aggregate term of 22½ years, unanimouslyaffirmed.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342 [2007]). There is no basis fordisturbing the jury's determinations concerning credibility and identification. The victim'sreliable identification of defendant was extensively corroborated by physical evidence and policetestimony.
The court properly exercised its discretion in permitting the People to elicit defendant'sracially offensive statements to the police shortly after the shooting. We conclude that, in thecontext of the case, this evidence was more probative than prejudicial. Although defendant wasnot charged with hate crimes under Penal Law § 485.05, and motive was not an element tobe proven, motive was nevertheless an important issue. While the prosecution contended thatdefendant shot the victim seven times in revenge for an insult, the defense argued that such anoverreaction to trivial teasing was implausible. Accordingly, defendant's racially chargedcomments tended to explain the overreaction by showing that defendant's intense racism was acontributing factor. In addition, there was a relationship between the statements at issue andepithets used by the assailant during the crime that was sufficient to make the statements relevantto the issue of identity. Defendant's remaining contentions concerning this evidence areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we find no basis for reversal. Concur—Gonzalez, P.J., DeGrasse, Freedman,Manzanet-Daniels and RomÁn, JJ.
Motion seeking leave to file pro se supplemental brief denied.