| People v Martinez |
| 2012 NY Slip Op 03530 [95 AD3d 462] |
| May 3, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ernesto Martinez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J., at hearing; Bruce Allen, J.,at trial, plea, and sentencing), rendered September 9, 2009, convicting defendant, after a jurytrial, of robbery in the first and second degrees, and, upon his plea of guilty, of attempted robberyin the second degree, and sentencing him, as a second violent felony offender, to an aggregateterm of 10 years, unanimously affirmed.
The trial court properly exercised its discretion in admitting testimony that the policeapprehended defendant on a subway train after recognizing him from a wanted poster bearing hisphotograph. The testimony was admitted not for its truth, but to provide background informationexplaining why the police approached and arrested defendant at the particular time and place inquestion (see People v Tosca, 98 NY2d 660 [2002]). Under the circumstances, to leavethe officers' actions unexplained "would have placed a mystery before the jury and invitedspeculation" (People v Barnes, 57AD3d 289, 290 [2008], lv denied 12 NY3d 781 [2009]). Furthermore, the courtprovided a suitable limiting instruction, which the jury is presumed to have followed. Inparticular, we find there was no danger that the jury would draw an inference that anyone otherthan testifying witness gave any information to the police (compare United States vReyes, 18 F3d 65, 70-71 [1994]).
The challenged portion of the prosecutor's summation did not deprive defendant of a fairtrial. The prosecutor did not act as an unsworn expert witness on the issue of eyewitnessidentification. Instead, in response to counsel's summation, the prosecutor essentially asked the[*2]jurors to apply ordinary life experiences and common sense.
We have considered and rejected defendant's remaining claims. Concur—Tom, J.P.,Andrias, DeGrasse, Richter and Román, JJ.