| People v Manigat |
| 2016 NY Slip Op 00641 [136 AD3d 614] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Paul E. Manigat, Appellant. |
Lynn W. L. Fahey, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Anastasia Spanakos, Christine DiSalvo, and Tina Grillo of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered March 19, 2014, convicting him of criminal possession of aweapon in the second degree and reckless endangerment in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence presented at trial established that on Thanksgiving Day, November 24,2011, the complainant was in her house eating dinner and looking out a window at herhusband's car parked on the street when she saw the defendant fire a shot into that car.When the complainant stood up and screamed, the defendant pointed the gun at her. Thecomplainant ducked under a table and the defendant fired another shot, which hit theframe of the kitchen window where the complainant had been standing. The shootingwas related to a debt owed by the complainant's husband.
The People sought to present evidence, under Molineux (see People vMolineux, 168 NY 264 [1901]), of two phone calls the defendant made from RikersIsland following his arrest. In one phone call, the defendant threatened another personregarding payment of an unrelated debt. In the second phone call, the defendantdiscussed the matter of the unrelated debt with a third party, stating that the defendantwas not scared of the police and would go to the debtor's house, "rag" him up, and "dothe same thing again" if the debtor did not have all his money. The Supreme Courtdenied the People's application, but made a Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) that, should the defendant decide to testify, thePeople could ask him if he made calls to a certain individual threatening to "rack [him]up" if the individual did not have the defendant's money, but would not be permitted toplay the recordings of the calls unless the defendant denied having made them. Thedefendant did not testify.
[*2] While,contrary to the People's contention, the defendant's challenge to the Sandovalruling is preserved for appellate review (see CPL 470.05 [2]), we concludethat the Supreme Court providently exercised its discretion in making this ruling, and thatthe ruling did not deprive the defendant of the right to testify on his own behalf (seePeople v Sandoval, 34 NY2d at 374-378). The phone calls were relevant to the issueof the defendant's credibility, because they demonstrated his willingness "to deliberatelyfurther his self-interest at the expense of society" (People v Biear, 119 AD3d 599, 600 [2014]; see People v Harris, 74 AD3d984 [2010]; People vTelesford, 2 AD3d 757 [2003]; People v Hegdal, 266 AD2d 472, 473[1999]). Moreover, the mere fact that the bad acts were similar or even identical in natureto the instant offenses did not warrant their preclusion, and the defendant is not shieldedfrom impeachment because he chose to specialize in one type of criminal activity (seePeople v Harris, 74 AD3d at 984-985; People v Springer, 13 AD3d 657 [2004]; People vSokolov, 245 AD2d 317, 318 [1997]). The fact that the defendant was the solepotential witness for the defense did not mandate a ruling prohibiting inquiry into hissubsequent conduct, and only increased the importance of his credibility and histestimony (see People v Hayes, 97 NY2d 203, 208 [2002]; People vBiear, 119 AD3d at 600; People v Garcia, 45 AD3d 860, 860-861 [2007]; People v McLaurin, 33 AD3d819 [2006]; People vCruz, 21 AD3d 967, 968 [2005]).
The defendant also challenges certain allegedly improper comments made by theprosecutor during summation. The defendant's contentions in this regard are largelyunpreserved for appellate review (see CPL 470.05 [2]) since, with respect to themajority of the challenged comments, he failed to object, or made general objections thatwere sustained without any further request for curative instructions and were not thebasis of his motion for a mistrial (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vBarton, 110 AD3d 1089, 1090 [2013]; People v Read, 97 AD3d 702, 703 [2012]; People v Parker-Davidson, 89AD3d 1114 [2011]). In any event, those challenged comments were proper, as "theywere within the broad bounds of rhetorical comment permissible in closing arguments,constituted a fair response to arguments made by defense counsel in summation, orconstituted fair comment on the evidence" (People v Barton, 110 AD3d at 1091;see People v Halm, 81 NY2d 819, 821 [1993]; People v Galloway, 54NY2d 396, 399 [1981]; People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Hanson, 100 AD3d771, 772 [2012], revd on other grounds 24 NY3d 294 [2014]). For thisreason, defense counsel's failure to object to those comments did not constituteineffective assistance of counsel. As to two comments the prosecutor made regarding anoutburst by the defendant during the trial, to which the defendant's objection ispreserved, the comments were improper, particularly since they were made in the face ofthe Supreme Court's explicit instructions to the jury to disregard the outburst and nothold it against the defendant. Nevertheless, the court sustained the objections to bothcomments, thereby "aborting prejudice by cutting short the argument[ ]" (People vGalloway, 54 NY2d at 399). Reversal is not warranted since the prosecutor'scomments did not, singly or in combination, deprive the defendant of a fair trial (see People v McMillan, 130AD3d 651, 654-655 [2015]; People v Garcia-Villegas, 78 AD3d 727, 728 [2010]; People v Dunbar, 74 AD3d1227, 1229 [2010]). Mastro, J.P., Leventhal, Cohen and LaSalle, JJ., concur.