| People v Holden |
| 2011 NY Slip Op 02031 [82 AD3d 1007] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamarHolden, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, andAdam Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered August 15, 2008, convicting him of murder in the second degree, bribing a witness, andcriminal possession of a weapon in the second degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
"Evidence of a defendant's prior bad acts may be admissible when it is relevant to a materialissue in the case other than defendant's criminal propensity" (People v Dorm, 12 NY3d 16, 19 [2009]; see People vAlvino, 71 NY2d 233, 241 [1987]). Such evidence may be used where relevant, among otherthings, to prove motive or identity (see People v Dorm, 12 NY3d at 19; People vMolineux, 168 NY 264 [1901]). Additionally, such evidence may be allowed when it isneeded as background material or to complete the narrative of the episode (see People vTosca, 98 NY2d 660, 661 [2002]; People v Till, 87 NY2d 835, 837 [1995]). "Wherethere is a proper nonpropensity purpose, the decision whether to admit evidence of defendant'sprior bad acts rests upon the trial court's discretionary balancing of probative value and unfairprejudice" (People v Dorm, 12 NY3d at 19; see People v Ventimiglia, 52 NY2d350, 359-360 [1981]; People v Santarelli, 49 NY2d 241, 250 [1980]; People vAllweiss, 48 NY2d 40, 47 [1979]). The evidence will be allowed if its probative valueexceeds the potential for prejudice to the defendant (see People v Cook, 93 NY2d 840,841 [1999]; People v Alvino, 71 NY2d at 242).
The Supreme Court providently exercised its discretion in determining that the probativevalue of the evidence in question outweighed the risk of prejudice to the defendant. Since therewas no witness to the actual shooting, the evidence was admissible to establish identity (seePeople v Basir, 179 AD2d 662, 664 [1992]). The evidence also was admissible as probativeof the defendant's motive, to provide necessary background information on the nature of therelationship between the defendant and the victim, and between the defendant and the keyprosecution witness, the defendant's ex-girlfriend, and to place the charged conduct in context(see People v Dorm, 12 NY3d at 19; People v Williams, 27 AD3d 673 [2006]; People v Cain, 16 AD3d 431, 432[2005]; People v Newby, 291 AD2d 460 [2002]; People v Band, 125 AD2d 683,686 [1986]). In addition, the Supreme Court's limiting instruction [*2]to the jury served to alleviate any prejudice resulting from theadmission of the evidence (see People vRamirez, 23 AD3d 500, 501 [2005]; People v Newby, 291 AD2d at 461;People v Muniz, 248 AD2d 644, 645 [1998]).
Likewise, the Supreme Court providently exercised its discretion in determining, in effect,that the victim's statement naming the defendant as the shooter was admissible as an excitedutterance. The statement was made moments after the victim, who later died of his wounds, hadbeen shot twice, when he was bleeding profusely, calling for help, flailing his arms, and saying"please don't let me die." Under these circumstances, the statement was clearly " 'the product ofthe declarant's exposure to a startling or upsetting event that [was] sufficiently powerful to renderthe observer's normal reflective processes inoperative' preventing the opportunity for deliberationand fabrication" (People v Carroll, 95 NY2d 375, 385 [2000], quoting People vVasquez, 88 NY2d 561, 574 [1996]; see People v Legere, 81 AD3d 746 [2d Dept 2011]; People v Marajdeen, 47 AD3d 949[2008]; People v Hasan, 17 AD3d482 [2005]; People v Corker, 309 AD2d 816, 817 [2003]; People v West,265 AD2d 354 [1999]). That the utterance was in response to an inquiry is "merely one factorbearing on spontaneity within the meaning of the excited utterance rule" (People vBrown, 70 NY2d 513, 519 [1987] [internal quotation marks and citation omitted]) and,under the circumstances, did not affect the statement's admissibility (cf. People v Johnson, 1 NY3d 302,307 [2003]).
The contentions raised in the defendant's pro se supplemental brief are without merit. Rivera,J.P., Dickerson, Eng and Lott, JJ., concur.