| People v Sheehan |
| 2013 NY Slip Op 02420 [105 AD3d 873] |
| April 10, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Sheehan, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andJeanette Lifschitz of counsel; Lorrie A. Zinno on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered May 13, 2011, convicting him of robbery in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's general motion to dismiss, made at the close of the People's case,failed to preserve for appellate review his challenge to the legal sufficiency of theidentification evidence against him (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People vJean-Marie, 67 AD3d 704, 704-705 [2009]). In any event, viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]; People v Jean-Marie, 67 AD3d at 705).Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
Contrary to the People's contention, the defendant's pretrial objection to the People'sMolineux motion (see People v Molineux, 168 NY 264 [1901] ) wassufficient to preserve for appellate review (see People v De Bour, 40 NY2d 210,215 [1976]; People v Ayala, 142 AD2d 147, 166-167 [1988], affd 75NY2d 422 [1990]) the issue of whether the trial court properly allowed the People toelicit testimony from the complainant that, on prior occasions when the complainant sawthe defendant walking around the neighborhood, the defendant appeared to beintoxicated. However, the defendant's contention that the admission into evidence of thechallenged testimony deprived him of a fair trial is without merit. "Although evidence ofprior crimes or bad acts is not admissible to show a defendant's predisposition to criminalconduct (see People v Molineux, 168 NY 264, 291-293 [1901]), such evidence isadmissible when it is relevant to prove an element of the crime charged, and theprobative value of the evidence outweighs the potential prejudice to the defendant" (People v [*2]Norman, 40 AD3d 1128, 1129 [2007]; see People v Cass, 18 NY3d553, 559 [2012]; People vArafet, 13 NY3d 460, 464-465 [2009]; People v Alvino, 71 NY2d 233,241-242 [1987]; People v Allweiss, 48 NY2d 40, 47 [1979]). "If the evidence ofprior crimes is probative of a legally relevant and material issue before the court, and forthat reason not automatically barred under the general rule, admissibility turns on thediscretionary balancing of the probative value and the need for the evidence against thepotential for delay, surprise and prejudice" (People v Alvino, 71 NY2d at 242)."To determine whether Molineux evidence may be admitted in a particular case,the trial court must engage in the following two-part inquiry: first, the proponent of theevidence must identify some material issue, other than the defendant's criminalpropensity, to which the evidence is directly relevant; once the requisite showing ismade, the trial court must weigh the evidence's probative value against its potential forundue prejudice to the defendant. If the evidence has substantial probative value and isdirectly relevant to the purpose—other than to show criminalpropensity—for which it is offered, the probative value of the evidence outweighsthe danger of prejudice and the court may admit the evidence" (People v Cass, 18NY3d at 560 [citations omitted]).
We find that the trial court providently exercised its discretion in concluding that theprobative value of the challenged testimony, which tended to explain how thecomplainant's prior observations of the defendant in the neighborhood enabled him torecognize the defendant during the subject robbery, outweighed its potential for undueprejudice to the defendant (see People v Cass, 18 NY3d at 561; People v Townsend, 100AD3d 1029, 1030 [2012], lv denied 20 NY3d 1015 [2013]; People v Bernardez, 73 AD3d1196, 1197 [2010]). We further find that any potential for prejudice from thetestimony, which, as noted by the trial court, involved neither a prior crime nor a bad act,was limited by the court's appropriate limiting instructions as to the narrow purpose forwhich that evidence could be considered (see People v Townsend, 100 AD3d at1031; People v Cockett, 95AD3d 1230, 1231 [2012]; People v Bernardez, 73 AD3d at 1197).
While we agree with the defendant that certain of the prosecutor's remarks duringsummation improperly denigrated defense counsel (see People v Davis, 39 AD3d 873, 875 [2007]; Peoplev Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may haveresulted from these remarks was alleviated when the trial court sustained the objectionsof the defendant and his codefendant and provided prompt curative instructions to thejury (see People v Rayford,80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; Peoplev DeFigueroa, 182 AD2d 772, 773 [1992]), directing that the jury disregard theseremarks, and explaining why the remarks were improper.
The remaining challenges to the prosecutor's remarks during summation areunpreserved for appellate review since defense counsel failed to object to these remarksor made only general objections, and these remarks were not the basis of his motion for amistrial (see People v Read,97 AD3d 702, 703 [2012]; People v Parker-Davidson, 89 AD3d 1114 [2011]). In anyevent, these remarks were within the broad bounds of rhetorical comment permissible inclosing arguments, and constituted fair response to arguments made by defense counselin summation, or fair comment on the evidence (see People v Galloway, 54NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Kennedy, 101 AD3d1045 [2012]; People vCaba, 101 AD3d 896 [2012]). Eng, P.J., Dickerson, Hall and Lott, JJ., concur.