| People v Johnson |
| 2016 NY Slip Op 01509 [137 AD3d 811] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Daqwan Johnson, Appellant. |
Stefani Goldin, Mineola, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibons and Ezra E.Zonana of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Robbins, J.), rendered August 26, 2011, convicting him of manslaughter in the firstdegree and criminal possession of a weapon in the second degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of shooting and killing his friend, Antonio Patterson, ina municipal parking lot across the street from the Island Rock Club located in Roosevelt,Long Island. At trial, an eyewitness testified that she was inside the club when sheobserved two men enter, approach the defendant and Patterson, and direct them to comeoutside. According to the eyewitness, when she went outside, she observed Patterson andone of the men engaged in a physical altercation and heard someone shout, "what are youwaiting for," whereupon the defendant drew a black handgun from his waistband andfired once in the direction of the altercation, striking Patterson. A mask with thedefendant's DNA on it was recovered from scene.
The defendant contends that his right to be present during the impaneling of the jurywas violated when the Supreme Court held two sidebar conferences in his absence. Thiscontention is without merit. After the panel of prospective jurors exited the courtroom,defense counsel asked to approach the bench with the prosecutor. Following a briefconference, the attorneys exercised their challenges for cause and their peremptorychallenges. Immediately thereafter, the attorneys again conferred with the court andprivately with each other. At that point, the court announced on the record that the partieshad stipulated that two of the potential jurors, against whom peremptory challenges hadinitially been exercised, would be alternate jurors. Both attorneys acknowledged theagreement.
In light of the stipulation, the defendant's presence at the conferences would not haveaffected the outcomes (see People v Favor, 82 NY2d 254 [1993]; People vLandry, 258 AD2d 475 [1999]). Moreover, the voir dire was performed in opencourt and the challenges were made in open court, in the presence of the defendant andhis attorney, and the defendant had an opportunity to discuss [*2]the stipulation with counsel before it was formally acceptedby the court and given effect in his presence when the accepted alternates were sworn inopen court (see People v Velasco, 77 NY2d 469 [1991]; People v Cobb, 77 AD3d673 [2010]; People vRolle, 4 AD3d 542 [2004]).
The defendant also argues that he was denied his right to a fair trial when theSupreme Court admitted into evidence the testimony of a witness that, approximately 30minutes prior to the shooting, the witness was approached by two men in the parking lotoutside the club, one of whom wore a mask and brandished a black gun.
"[E]vidence of uncharged crimes is inadmissible where its purpose is only to show adefendant's bad character or propensity towards crime" (People v Morris, 21 NY3d588, 594 [2013]; see Peoplev Cass, 18 NY3d 553, 559 [2012]; People v Dorm, 12 NY3d 16, 19 [2009]; People vMolineux, 168 NY 264, 293 [1901]). However, " '[w]hen evidence ofuncharged crimes is relevant to some issue other than the defendant's criminaldisposition, it is generally held to be admissible on the theory that the probative valuewill outweigh the potential prejudice to the accused' " (People v Morris,21 NY3d at 594, quoting People v Allweiss, 48 NY2d 40, 47 [1979]). Thus,evidence of uncharged crimes may be admitted where it shows intent, motive,knowledge, common scheme or plan, or identity of the defendant (see People v Arafet, 13 NY3d460 [2009]; People v Molineux, 168 NY at 293). In addition, the purposesfor which uncharged crime evidence may properly be admitted include completing thenarrative of the events charged in the indictment and providing necessary backgroundinformation (see People v Tosca, 98 NY2d 660 [2002]; People v Harris, 117 AD3d847 [2014], affd 26 NY3d 1 [2015]; People v Gordon, 308 AD2d461 [2003]; People v Jones, 221 AD2d 661 [1995]). The determination lieswithin the discretion of the trial court (see People v Morris, 21 NY3d at 595; People v Dorm, 12 NY3d16 [2009]; People vJames, 132 AD3d 905 [2015]).
The Supreme Court providently exercised its discretion in admitting the witness'stestimony, as it was relevant to and probative of the defendant's motive to commit thecharged crimes, and the testimony gave the jury an appropriate context in which toevaluate the case (see People vWisdom, 120 AD3d 724 [2014]). The testimony provided an explanation to thejury for the fight between Patterson and one of the men, and for the defendant'spossession of the gun in the parking lot (see People v Williams, 27 AD3d 673 [2006]). In addition,the testimony was necessary background evidence and completed the narrative of eventsleading up to the shooting (see People v Tosca, 98 NY2d at 661; People v Crevelle, 125 AD3d995 [2015]; People vArmstead, 118 AD3d 903 [2014]; People v Dahlbender, 23 AD3d 493 [2005]), and was alsoprobative of the eyewitness's credibility, "which was a central issue for the jury toresolve" (People v Morris, 21 NY3d at 597).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Balkin, J.P., Hall, Roman and Maltese, JJ., concur.