| People v Reid |
| 2012 NY Slip Op 05762 [97 AD3d 1037] |
| July 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lamarr Reid,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal (upon remittal from the Court of Appeals) from a judgment of theCounty Court of Albany County (Breslin, J.), rendered June 1, 2007, upon a verdict convictingdefendant of the crime of murder in the second degree.
When this appeal was previously before this Court, we found that the integrity of the grandjury was not impaired, defendant's letters were properly admitted at trial, and the conviction wassupported by legally sufficient evidence and not against the weight of the evidence (82 AD3d1495 [2011], revd 19 NY3d 382 [2012]). We found that defendant was entitled to a newtrial, however, based on questioning by the People that implicated defendant's right to confrontwitnesses (id. at 1497-1498). The Court of Appeals reversed, finding that defensequestioning had opened the door and that the prosecutor did not exceed acceptable bounds whencorrecting the misleading impression created by that questioning (19 NY3d 382 [2012]). Thematter was remitted for this Court to consider the remaining issues we did not resolve when theappeal was previously before us.
County Court's Sandoval ruling was proper. The court reached an appropriatecompromise by permitting the People to inquire about defendant's conviction for criminal sale ofa controlled substance, which demonstrated his willingness to place his interests above those ofsociety, and to refer to two other convictions only as class E violent felonies (see People vPeele, [*2]73 AD3d 1219, 1220 [2010], lvs denied 15NY3d 894 [2010]). Defendant did not argue to the trial court that he would be prejudiced bypermitting the People to refer to his prior crimes as "violent" felony offenses, so that argument isunpreserved for our review.
In its Molineux ruling, County Court engaged in the required balancing of probativevalue against prejudicial effect to defendant (see People v Shutter, 72 AD3d 1211, 1214 [2010], lvdenied 14 NY3d 892 [2010]). References to defendant's gang membership were highlyprobative to explain why defendant would brag about the murder to several witnesses and how hecame to possess the gun that he used. Facts surrounding the ultimate disposition of the shotgunused by the codefendant were necessary to establish the time frame of when defendant made anadmission to one of the witnesses. These and other prejudicial prior bad acts were admittedbecause of their probative value. Additionally, the court gave limiting instructions to the jury sothis evidence would be considered only for appropriate purposes (see People v Edmunds, 21 AD3d578, 580 [2005], lv denied 5 NY3d 828 [2005]; compare People v Westerling, 48 AD3d 965, 968 [2008]).
We will not address defendant's allegations of prosecutorial misconduct because he did notpreserve them by making proper objections to the prosecutor's questions or comments thatdefendant now challenges (see People vCortese, 79 AD3d 1281, 1283 [2010], lv denied 16 NY3d 857 [2011]).Similarly, defendant failed to preserve his allegations that County Court was biased in favor ofthe People, as he did not object to the court's conduct or move for recusal (see People v Busreth, 35 AD3d965, 967 [2006], lv denied 8 NY3d 920 [2007]; People v Lebron, 305 AD2d799, 800 [2003], lv denied 100 NY2d 583 [2003]).
These failures to object did not render counsel's assistance ineffective. Considering thetotality of the circumstances, defendant received meaningful representation, as evinced by hisconcession that counsel was well prepared, made coherent opening and closing statements,effectively examined witnesses and had a reasonable trial strategy (see People v Fulwood, 86 AD3d809, 811 [2011], lv denied 17 NY3d 952 [2011]; People v Cioto, 80 AD3d 875, 876 [2011], lv denied 16NY3d 829 [2011]). Defendant now argues that counsel was ineffective by opening the door toharmful testimony, as detailed by the Court of Appeals. This argument could havebeen—but was not—raised in his initial brief, so we will not review this contentionraised for the first time on remittal (seeMatter of Clinton County [Miner], 39 AD3d 1015, 1016 [2007]; Matter of Deuel v Dalton, 33 AD3d1158, 1159 [2006]).
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.