| People v Devaughn |
| 2011 NY Slip Op 04696 [84 AD3d 1394] |
| May 31, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexDevaughn, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Roni C. Piplani of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered September 9, 2004, convicting him of murder in the second degree (two counts) androbbery in the first degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
In the early morning hours of January 9, 2000, the defendant and his accomplice got out of acar at a store in Queens, and drew guns on two men wearing expensive chains. A gunshot wentoff, and the defendant grabbed the chain from one of the victims and ran away. The man who haddriven the defendant and his accomplice to the store testified that the accomplice admittedshooting the robbery victim, who died from his injuries.
At trial, the court allowed the People to introduce testimony from two men with whom thedefendant participated in a string of similar robberies in the month before the robbery at issue.They both testified that the defendant complained to them that they were unavailable to assisthim during the January 9 robbery, and they further testified that the defendant told themeverything that had happened during the January 9 robbery. The Supreme Court also precludeddefense counsel from asking the surviving robbery victim if the shooting could have been inretaliation for a drug-deal-related stabbing in which the robbery victims may have been involved.
The jury convicted the defendant of murder in the second degree (two counts) on a theory offelony murder, and robbery in the first degree (two counts). The defendant appeals.
The Supreme Court's discretion in making evidentiary rulings "is circumscribed by the rulesof evidence and the defendant's constitutional right to present a defense" (People vCarroll, 95 NY2d 375, 385 [2000]). Although evidence of other crimes is generallyinadmissible, it can be admitted, inter alia, to establish motive or to complete a narrative (seePeople v Molineux, 168 NY 264, 293 [1901]; People v Vails, 43 NY2d 364, 368[1977]). In order to be " 'inextricably interwoven' " into a narrative, the evidence must relatedirectly to the crime charged, and explain the acts done or words used (People vCrandall, 67 NY2d 111, 116 [1986], quoting People v Ventimiglia, 52 NY2d 350,361 [1981]). Here, the evidence of the prior robberies was admissible to provide the jury with athorough understanding of the defendant's relationship with the prosecution witnesses,particularly as to why the defendant would speak freely to those witnesses about havingcommitted the robberies at issue (see People v Vega, 23 AD3d 680, 681 [2005];People v Sime, 254 [*2]AD2d 183, 184 [1998]; cf.People v Harris, 150 AD2d 723, 725 [1989]). Defense counsel waived the defendant'spresent argument that the Supreme Court's limiting instructions regarding this testimony wereinsufficient by stating on the record that he was satisfied with the limiting instructions, and bystating his belief that no further limiting instructions were needed (People v Norman, 40AD3d 1128, 1129-1130 [2007]). The defendant's further contention that the prosecutorerroneously relied on this testimony during summation is unpreserved for appellate review(see People v Jones, 9 AD3d 374 [2004]; People v Scotti, 220 AD2d 543 [1995])and, in any event, without merit (see generally People v Ashwal, 39 NY2d 105, 109-110[1976]).
When a defendant seeks to introduce evidence that a third party may have committed thecrime, the court must weigh the probative value of such evidence against its potential for undueprejudice, trial delay, and jury confusion (see People v Primo, 96 NY2d 351, 356[2001]). "[E]vidence of third-party culpability may not rest on mere suspicion, surmise, orspeculation" (People v Johnson, 49 AD3d 664, 665 [2008]). Here, the Supreme Courtproperly precluded defense counsel from asking the surviving robbery victim if the shootingcould have been perpetrated by a third party in retaliation for a drug-deal-related stabbing inwhich the robbery victims may have been involved, since this line of questioning was based onlyon speculation (see e.g. People v Gamble, 72 AD3d 544, 545 [2010], lv granted15 NY3d 920 [2010]). The defendant's further contention that his Sixth Amendment right toconfront witnesses was violated is unpreserved for appellate review and, in any event, withoutmerit (see People v Walker, 70 AD3d 870, 871 [2010]; see generally Crawford vWashington, 541 US 36, 53-54 [2004]).
Contrary to the defendant's contention, the indictment was not defective (see PenalLaw § 125.25 [3]; People v D'Angelo, 98 NY2d 733, 735 [2002]). The defendant'sfinal contention, that the Supreme Court improperly charged the jury, is unpreserved for appellatereview (see People v Stapleton, 41 AD3d 744, 745 [2007]) and, in any event, withoutmerit (see generally People v Ladd, 89 NY2d 893, 895 [1996]; cf. People vFlynn, 79 NY2d 879, 881-882 [1992]). Covello, J.P., Eng, Leventhal and Cohen, JJ., concur.