| People v Garcia |
| 2014 NY Slip Op 00461 [113 AD3d 553] |
| January 28, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Garcia, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Ravi Kantha of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered June29, 2011, as amended July 26, 2011, convicting defendant, after a jury trial, ofmanslaughter in the first degree, and sentencing him to a term of 20 years, unanimouslymodified, on the law, to the extent of reducing the amounts of the mandatory surchargeand crime victim assistance fee to $250 and $20, respectively, and otherwise affirmed.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury'sdeterminations concerning credibility and identification. The principal witness, who hadseen defendant on prior occasions, made a strong identification, and her unwillingness toidentify defendant's photograph while subsequently selecting him from a lineup was fullyexplained. In addition, defendant's absence for almost two years after the crime evincedhis consciousness of guilt (see People v Allen, 61 AD2d 619, 622 [1st Dept1978], affd 48 NY2d 760 [1979]).
The court properly permitted the People to introduce evidence that the victim'snontestifying sister told a detective that the victim had been having an unspecified"problem" with defendant, who was the victim's long-term acquaintance. This testimonywas presented not for the truth of the matter asserted, but to explain why the policefocused on defendant and spent years attempting to locate him (see People vTosca, 98 NY2d 660, 661 [2002]; People v Rivera, 96 NY2d 749 [2001]; People v Barnes, 57 AD3d289, 290 [2008], lv denied 12 NY3d 781 [2009]; see also People v Morris, 21NY3d 588 [2013]). While defendant objected to this evidence as hearsay, thatobjection did not preserve his present Confrontation Clause claim (see People vKello, 96 NY2d 740, 743-744 [2001]; People v Maher, 89 NY2d 456,462-463 [1997]; comparePeople v Hardy, 4 NY3d 192, 197 n 3 [2005]), and we decline to review thisclaim in the interest of justice. As an alternative holding, we find no ConfrontationClause violation, because the evidence was admissible for a legitimate purpose other thanits truth (see Tennessee v Street, 471 US 409 [1985]; United States vReyes, 18 F3d 65, 70-71 [1994]). However, the court [*2]should have given a limiting instruction. Nevertheless, anyerror in receiving the evidence or in failing to deliver a limiting instruction was harmless,because neither the evidence nor the absence of an instruction could have affected theverdict. In particular, we note that rather than misusing the out-of-court statement insummation, the prosecutor essentially gave the jury the same limiting instruction that thecourt should have given.
Since the crime was committed before the effective date of the legislation increasingthe mandatory surcharge and crime victim assistance fee, defendant's sentence isunlawful to the extent indicated. We otherwise perceive no basis for reducing thesentence. Concur—Acosta, J.P., Saxe, Moskowitz and Feinman, JJ.