| People v Brown |
| 2016 NY Slip Op 03894 [139 AD3d 964] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shyron J. Brown, Also Known as Sha Banger, Also Known asSha Easy, Also Known as Olah, Appellant. |
Arza Feldman, Uniondale, NY (Steven A. Feldman of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kristen A. Rappleyea ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County(Greller, J.), rendered April 26, 2012, convicting him of murder in the first degree,murder in the second degree, attempted robbery in the first degree, and criminalpossession of a weapon in the second degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the County Court properly denied his requestto have manslaughter in the first degree (Penal Law § 125.20 [1]) chargedas a lesser-included offense of murder in the second degree (Penal Law§ 125.25 [1]). "To establish entitlement to a lesser included offense charge,the defendant must make two showings. First, it must be shown that the additionaloffense that he desires to have charged is a 'lesser included offense[,'] i.e., that it is anoffense of lesser grade or degree and that in all circumstances, not only in thosepresented in the particular case, it is impossible to commit the greater crime withoutconcomitantly, by the same conduct, committing the lesser offense. That established, thedefendant must then show that there is a reasonable view of the evidence in the particularcase that would support a finding that he committed the lesser offense but not thegreater" (People v Glover, 57 NY2d 61, 63 [1982]). Here, the first prong ofGlover is satisfied because it is impossible to commit murder in the seconddegree without committing manslaughter in the first degree (see People v Butler,57 NY2d 664 [1982]). The second prong of Glover, however, is not satisfiedbecause there is no reasonable view of the evidence which would support a finding thatthe defendant committed manslaughter in the first degree, but not murder in the seconddegree (see CPL 300.50 [1]; see also People v Acevedo, 112 AD3d 454 [2013]; People v Ramsey, 59 AD3d1046 [2009]; People vTyler, 43 AD3d 633 [2007]; People v Moreno, 16 AD3d 438 [2005]; People vJackson, 202 AD2d 518 [1994]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of his right to a fair trial on the ground that the County Court permitted thePeople to elicit from a witness, who testified under a cooperation agreement with theDistrict Attorney's office, that the defendant was a member of the Bloods gang(see CPL 470.05 [2]). At trial, defense counsel made only a general objection. Inany event, the evidence that the defendant was a member of the Bloods [*2]gang and that it was through the Bloods gang that thecooperating witness knew the defendant, was relevant to explaining the relationshipbetween the two and why the cooperating witness would plan with the defendant to robthe victim (see People v Primo, 96 NY2d 351 [2001]; People v Heiserman, 127AD3d 1422 [2015]).
The defendant likewise failed to preserve for appellate review his contention that hewas deprived of a fair trial because the County Court permitted the People to introduceevidence of the defendant's prior bad act of planning an uncharged robbery with thecooperating witness (see CPL 470.05 [2]). In any event, evidence that thedefendant and the cooperating witness planned a prior robbery was relevant to prove thedefendant's intent to commit the instant attempted robbery (see People v Mendez, 70AD3d 861 [2010]; People vLaverpool, 52 AD3d 622 [2008]; People v Wright, 288 AD2d 409[2001]) and to complete the narrative as to the instant attempted robbery (see People v Workman, 56AD3d 1155 [2008]).
Contrary to the defendant's contention, the County Court properly granted thePeople's application for a consciousness of guilt charge because the probative evidencewarranting the charge outweighed any prejudice attendant to the charge (see People vYazum, 13 NY2d 302 [1963]; People v Roman, 60 AD3d 1416 [2009]; People v Waterman, 39 AD3d1259 [2007]; People v Fama, 212 AD2d 542 [1995]).
The defendant's contention that he was deprived of a fair trial due to the prosecutor'scommenting during summation that the defendant was "a predator" and "a coward" isunpreserved for appellate review (see CPL 470.05 [2]). At the completion of theprosecutor's summation, defense counsel noted that the prosecutor had called thedefendant "predator" and "coward" several times. The court thereafter instructed the jurythat the summations of counsel were not evidence and that depending upon whether thejury found a summation argument reasonable and logical, it could adopt or reject suchargument. Because the defense did not thereafter seek a mistrial, the aforementionedinstruction "must be deemed to have corrected the error to the defendant's satisfaction"(People v Heide, 84 NY2d 943, 944 [1994]; see People v Mendez, 104 AD3d 1145, 1145 [2013]). Inany event, insofar as the People's theory of the case was that the defendant "executed" thevictim by firing two shots in quick succession—the first shot was fired from lessthan three to six inches away and entered the victim's chest, and the second shot wasfired from 18 to 24 inches away and entered the victim's back—the challengedremarks constituted fair comment on the evidence and the inferences to be drawntherefrom (see People v Ashwal, 39 NY2d 105 [1976]; People v Fuhrtz, 115 AD3d760 [2014]; People vBirot, 99 AD3d 933 [2012]; People v Guevara-Carrero, 92 AD3d 693 [2012]) and, thus,did not deprive the defendant of a fair trial. Moreover, to the extent that any other of theprosecutor's summation comments were improper, any error was harmless, as there wasoverwhelming evidence of the defendant's guilt, and no significant probability that anyerror in this regard might have contributed to the defendant's convictions (see Peoplev Crimmins, 36 NY2d 230, 240-241 [1975]; People v Then, 128 AD3d 864 [2015], lv granted25 NY3d 1208 [2015]; People v Roscher, 114 AD3d 812 [2014]). Mastro, J.P.,Rivera, Austin and LaSalle, JJ., concur.