| People v Keitt |
| 2016 NY Slip Op 05447 [141 AD3d 437] |
| July 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rudolph Keitt, Appellant. |
Mischel & Horn, P.C. New York (Richard E. Mischel of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered January 13,2011, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him to a term of 20 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's credibility determinations. The evidence supported the conclusion that defendantstabbed the victim multiple times, or at least that, if the codefendant did the stabbing,defendant aided him by simultaneously striking the victim, with a shared intent to causeserious physical injury (see generally Penal Law § 20.00; Peoplev Allah, 71 NY2d 830, 832 [1988]).
The court properly denied defendant's motion to suppress his statements (made afterMiranda warnings) as fruits of an allegedly unlawful detention. The recordsupports the court's factual determination that defendant voluntarily accompanied thedetectives to the precinct, where he remained voluntarily and was not placed under anyrestraint (see People v Morales, 42 NY2d 129, 137-138 [1977], cert denied434 US 1018 [1978]; see also People v Yukl, 25 NY2d 585, 589 [1969],cert denied 400 US 851 [1970]).
The court properly exercised its discretion in admitting recorded phone calls, alongwith explanatory expert testimony, relating to defendant's continued gang affiliationwhile in custody on this case. Although the jury had already heard that members of thegang to which defendant belonged were motivated to commit violent acts in order to earnhigher status, the phone calls were particularly probative because they suggested thatdefendant actually earned a promotion as the result of this homicide (see People v Ford, 133 AD3d442 [1st Dept 2015]; People v Edwards, 295 AD2d 270 [1st Dept 2002],lv denied 99 NY2d 557 [2002]). Moreover, this evidence was probative ofidentity because it permitted a circumstantial inference that defendant was referring to thecharged crime, and was thus implicating himself. The court's limiting instructionsdelivered immediately after admission of the evidence and in its final charge minimizedthe potential for prejudice.
Defendant's challenge to a portion of the court's charge on the People's burden ofproof is unpreserved and we decline to review it in the interest of justice. As analternative holding, we reject it on the merits (see People v Jiovani, 258 AD2d277 [1st Dept 1999], lv denied 93 NY2d 900 [1999]). We perceive no basis forreducing the sentence. Concur—Mazzarelli, J.P., Friedman, Andrias, Webber andGesmer, JJ.