| People v Bruce |
| 2015 NY Slip Op 06251 [130 AD3d 938] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Marcus Bruce, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove,Solomon Neubort, and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered July 19, 2012, convicting him of robbery in the first degree androbbery in the second degree (five counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court excused potential jurors basedupon hardship without conducting a sufficient inquiry is unpreserved for appellatereview (see People vJordan, 125 AD3d 787, 787 [2015]; People v Racks, 125 AD3d 692, 693 [2015]; People v Brown, 123 AD3d938, 939 [2014]) and, in any event, is without merit (see People v Johnson, 116AD3d 883 [2014]; People vKing, 110 AD3d 1005, 1006 [2013]; People v Umana, 76 AD3d 1111, 1112 [2010]; People v Toussaint, 40 AD3d1017, 1017-1018 [2007]).
The defendant's contention that the Supreme Court erred in granting the People'sapplication to modify its Sandoval ruling (see People v Sandoval, 34NY2d 371 [1974]) so as to allow certain underlying facts regarding a prior juveniledelinquency adjudication to be elicited on cross-examination of the defendant isunpreserved for appellate review (see CPL 470.05 [2]). In any event, thiscontention is without merit. As the court properly concluded, the defendant opened thedoor to such questioning when, on direct examination, he described the nature of theincident underlying the juvenile delinquency adjudication as a "prank" (see People v Eddo, 55 AD3d922, 923 [2008]; People vBrown, 11 AD3d 474, 475 [2004]; People v Sims, 245 AD2d 316, 317[1997]). Moreover, since the defendant raised the affirmative defense of duress, bywhich he implicitly denied any criminal intent to commit the crimes charged, the Peoplewere properly permitted to rebut that defense with evidence of the defendant's criminaldisposition or inconsistent intent (see People v Calvano, 30 NY2d 199, 205-206[1972]; People v Williams,38 AD3d 577, 578 [2007]; People v Maldonado, 5 AD3d 505, 506 [2004]).
The questions posed by the prosecutor during cross-examination of the defendantregarding his high school truancy record were also proper. The defendant opened thedoor to such questioning by testifying during direct examination that he was a highschool graduate who was [*2]anticipating going tocollege, and by eliciting testimony from defense witnesses that he was responsible and a"good" kid who did not get into trouble (see People v O'Keefe, 105 AD3d 1062, 1063 [2013]; People v Jackson, 100 AD3d1018, 1018 [2012]).
The defendant contends that a question posed by the prosecutor regarding a commentthat the defendant allegedly made before another judge was improper. However, sincedefense counsel did not seek further relief or move for a mistrial after the Supreme Courtsustained his objection and struck the question from the record, this contention isunpreserved for appellate review (see People v Gill, 54 AD3d 965, 965-966 [2008]). In anyevent, the comment alleged to be prejudicial was harmless (see People vCrimmins, 36 NY2d 230, 241-242 [1975]). Similarly, with respect to a questionposed by the prosecutor regarding a remark the defendant allegedly made to garnersympathy from the jury, the Supreme Court providently exercised its discretion indenying defense counsel's motion for a mistrial. In this regard, any possible prejudice tothe defendant was ameliorated when the Supreme Court sustained defense counsel'sobjection, struck the question from the record, and provided a curative instruction to thejury (see People v Dubois,116 AD3d 878, 878 [2014]; People v Ray, 100 AD3d 933, 933-934 [2012]; seegenerally People v Young, 48 NY2d 995, 996 [1980]). Moreover, neither of thechallenged questions deprived the defendant of a fair trial.
The defendant's contention that the verdict sheet contained annotations notauthorized by CPL 310.20 (2) is unpreserved for appellate review and, in any event,without merit (see People vLewis, 23 NY3d 179, 187 [2014]; People v Cole, 85 NY2d 990,991-992 [1995]; People vNunez, 120 AD3d 714, 716 [2014]; People v Cardenas, 239 AD2d 594[1997]; People v Simpson, 222 AD2d 462 [1995]). Skelos, J.P., Leventhal,Austin and Miller, JJ., concur.