| People v Conroy |
| 2013 NY Slip Op 00503 [102 AD3d 979] |
| January 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jeffrey Conroy, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County(R. Doyle, J.), both rendered May 26, 2010, convicting him, upon a jury verdict, of (1)attempted assault in the second degree as a hate crime under indictment No. 236-09, and(2) manslaughter in the first degree as a hate crime, gang assault in the first degree,conspiracy in the fourth degree, and attempted assault in the second degree as a hatecrime (two counts), under indictment No. 3032-08, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant was convicted of several crimes charged in connection with threeseparate attacks upon Hispanic men occurring on two separate dates, November 3, 2008,and November 8, 2008. During the course of the third incident, the defendant stabbedMarcelo Lucero, causing his death. After a joint trial of the charges, the defendant wasconvicted of attempted assault in the second degree as a hate crime under indictment No.236-09, in connection with the incident of November 3, 2008, and manslaughter in thefirst degree as a hate crime, gang assault in the first degree, conspiracy in the fourthdegree, and attempted assault in the second degree as a hate crime (two counts), underindictment No. 3032-08, in connection with the incidents of November 8, 2008.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]; People v Hartman, 64 AD3d 1002 [2009]; People v Chowdhury, 22AD3d 596, 597 [2005]; People v Stoby, 4 AD3d 766 [2004]; People vKenward, 266 AD2d 155 [1999]).
The indictments against the defendant were properly joined for trial, inter alia, on the[*2]ground that proof of each offense was material andadmissible as evidence in chief of the other offenses (see CPL 200.20 [2]; People v Latimer, 24 AD3d807 [2005]). Further, evidence of uncharged crimes committed by the defendant andhis codefendants, and prior statements or acts of animosity or hostility, were properlyadmitted under the circumstances of this case, to complete the narrative of the events,provide background material, and as evidence of motive or state of mind with respect tothe crimes charged (see People v Till, 87 NY2d 835, 837 [1995]; People v Morris, 89 AD3d1112, 1113 [2011], lv granted 19 NY3d 964 [2012]; People v Mena, 71 AD3d475, 476 [2010]; People vAlas, 44 AD3d 534 [2007]).
The trial court providently exercised its discretion in precluding the defendant frompresenting, for impeachment purposes, extrinsic evidence of a prosecution witness's priorstatements to law enforcement officials, which omitted references to epithets againstHispanics (see People v Duncan, 46 NY2d 74, 80 [1978], cert denied442 US 910 [1979]). The witness did not deny making those statements; rather, heexplained the discrepancies by claiming that his statements to the police were made in theearly hours of the morning, just after he was notified of the death of his friend.Therefore, the admission of extrinsic evidence of these prior statements would have beencumulative (cf. People v Washington, 51 NY2d 214, 221 [1980]; Jerome Prince,Richardson on Evidence § 6-411 at 406 [Farrell 11th ed 1995]).
The defendant contends that the trial court improperly denied his request to instructthe jury with respect to criminally negligent homicide as a lesser-included offense ofmanslaughter in the first degree as a hate crime. The trial court granted his alternaterequest to instruct the jury with respect to the lesser-included offense of manslaughter inthe second degree, but the jury convicted the defendant of manslaughter in the firstdegree as a hate crime, as charged in the indictment. Therefore, review of the trial court'srefusal to charge the remote lesser-included offense of criminally negligent homicide isforeclosed (see People vGreen, 5 NY3d 538, 545 [2005]; People v Boettcher, 69 NY2d 174, 180[1987]; People vMcGeachy, 74 AD3d 989 [2010]; People v McLeod, 38 AD3d 798, 799 [2007]; People v McMurry, 30 AD3d444 [2006]). Further, by convicting the defendant of manslaughter in the first degreeas a hate crime, the jury found that the defendant intended to inflict serious physicalinjury on the victim Marcelo Lucero (see Penal Law § 125.20 [1]).Therefore, the trial court's refusal to instruct the jury with respect to gang assault in thesecond degree as a lesser-included offense of gang assault in the first degree (seePenal Law §§ 120.06, 120.07) also does not warrant reversal (see People v Rodriguez, 16NY3d 341, 346 [2011]; People v Ribowsky, 77 NY2d 284, 292 [1991];People v Albino, 65 NY2d 843 [1985]; People v Degondea, 269 AD2d243, 245 [2000]).
During deliberations, the jury specifically requested to hear the "cross-examinationof Detective John McLeer." After consulting with counsel for the parties, the trial courtproperly denied the defense counsel's request for a reading of additional testimony, sincethe court had no obligation "to direct the reading of testimony beyond that requested"(People v Murray, 258 AD2d 936, 937 [1999]; see People v Almodovar,62 NY2d 126, 132 [1984]).
The defendant's remaining contentions are without merit. Mastro, J.P., Dickerson,Sgroi and Hinds-Radix, JJ., concur.