| People v Pitt |
| 2019 NY Slip Op 01686 [170 AD3d 1282] |
| March 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keron Pitt, Appellant. |
Law Offices of Danielle Neroni Reilly, Albany (Angela Kelley of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 7, 2017, upon a verdict convicting defendant of the crime of assault in the seconddegree.
On August 1, 2016, defendant stopped by the home of his girlfriend—the mother ofhis two children—where she resided with her mother and stepfather. Defendant and thegirlfriend thereafter engaged in a heated argument in the hallway of the shared family residence,prompting the girlfriend's mother to intervene in an attempt to get defendant to leave thepremises. As the arguing continued, the victim—the girlfriend's brother—who livedin the apartment directly above, came downstairs when he heard defendant arguing with hismother and confronted defendant after he heard him yell "somebody going to die tonight."Defendant and the victim thereafter engaged in a physical altercation, during which defendantstabbed the victim twice in the left side of his torso. Following the stabbing, defendant fled thescene and the victim was thereafter rushed to the hospital where he underwent emergency surgeryfor, among other things, a perforated colon. In October 2016, defendant was charged byindictment with assault in the first degree. At trial, defendant testified in his own defense and didnot deny that he stabbed the victim, but argued that he acted in self-defense, prompting CountyCourt to provide the jury with an instruction on the defense of justification. Following the jurytrial, defendant was acquitted of assault in the first degree, but was convicted of the lesserincluded charge of assault in the second degree. Defendant was then sentenced to a prison termof seven years, to be followed by three years of postrelease supervision. Defendant nowappeals.
Defendant contends that County Court erred by granting the People's Molineuxapplication, permitting the People to elicit testimony regarding a prior verbal and physicalaltercation between defendant and the victim on June 17, 2016, as well as certain threateningstatements that defendant allegedly made to the girlfriend after the incident on September 4,2016. We disagree. "Evidence of prior criminal conduct or bad acts is inadmissible to establish adefendant's criminal propensity or bad character, but may be admitted when it is relevant to somematerial issue pertaining to the charged crime and its probative value outweighs its potential forunfair prejudice" (People v Lebron,166 AD3d 1069, 1074 [2018] [internal quotation marks and citation omitted], lvdenied 32 NY3d 1174 [2019]; seePeople v Leonard, 29 NY3d 1, 6-7 [2017]; People v Conklin, 158 AD3d 973, 975 [2018], lv denied 31NY3d 1080 [2018]). Although not an exhaustive list of recognized Molineux exceptions,the People may use such evidence to prove, among other things, motive, intent, lack of mistakeor accident, identity, or common scheme or plan (see People v Cass, 18 NY3d 553, 559 [2012]; People v Dorm, 12 NY3d 16, 19[2009]; People v Nunes, 168 AD3d1187, 1192 [2019]). Here, the proffered testimony regarding the June 2016 altercationbetween defendant and the victim was not too remote in time to be relevant to establishingdefendant's motive and intent to assault the victim on August 1, 2016, as such evidence wasinextricably interwoven with the charged crime as it provided relevant and necessary contextwith regard to the setting in which the assault occurred and the contentious relationship betweendefendant, the girlfriend and the girlfriend's family and was more probative than it wasprejudicial (see People v Dorm, 12 NY3d at 19; People v Silver, 168 AD3d 1225, 1226 [2019]; People vConklin, 158 AD3d at 975), particularly given defendant's justification claim and hisargument that the victim was the initial aggressor. With regard to the September 2016 incident,County Court did not abuse its discretion in admitting evidence pertaining to defendant'sstatement to the girlfriend that "you're lucky your brother is not dead," because, although suchevidence did not constitute Molineux evidence as it occurred after the charged conduct, itwas nevertheless probative of his consciousness of guilt (see People v Wells, 141 AD3d 1013, 1019 [2016], lvdenied 28 NY3d 1189 [2017]; People v Peele, 73 AD3d 1219, 1221 [2010], lv denied 15NY3d 894 [2010]). Defendant's argument that the People improperly elicited certain otherMolineux testimony outside of their Molineux proffer is either unpreserved forreview (see People v Knox, 137AD3d 1330, 1334 [2016], lv denied 27 NY3d 1070 [2016]) or, upon review,constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Burns, 68 AD3d 1246,1248-1249 [2009], lv denied 14 NY3d 798 [2010]; People v Echavarria, 53 AD3d 859, 863 [2008], lv denied11 NY3d 832 [2008]).
Defendant's contention that he was denied his right to a fair trial based upon prosecutorialmisconduct as a result of improper and prejudicial comments made by the prosecutor duringopening and closing statements is largely unpreserved for review as defendant only objected totwo of the numerous comments made by the prosecutor that he now claims deprived him of a fairtrial (see People v Richardson, 162AD3d 1328, 1331 [2018], lv denied 32 NY3d 1128 [2018]; People v Mesko, 150 AD3d 1412,1414 [2017], lv denied 29 NY3d 1131 [2017]). With respect to the two statements thatwere challenged, County Court sustained defendant's initial objection regarding the prosecutor's"reference to blessing the stabbing," ordering the jury to disregard the comment and striking itfrom the record. Moreover, the court thereafter sua sponte objected to the prosecutor's commentwherein he purported to pose a hypothetical "thought experiment" to the jury, again striking saidreference from the record and providing the jury with a curative instruction, instructing the jurythat its decision was to be based solely upon the evidence introduced at trial. Although CountyCourt overruled defendant's subsequent objection to the prosecutor's comments regarding the lawof justification, the court nevertheless provided an immediate curative instruction to the jury,emphasizing that the People's summation was not evidence and that it was County Court's finalinstructions to the jury on the law that was controlling.
Importantly, "[s]ummations are rarely perfect . . . [and] not every impropercomment made by the prosecuting attorney during the course of closing arguments warrantsreversal of the underlying conviction" (People v Forbes, 111 AD3d 1154, 1160 [2013]). Under thecircumstances, although "the bulk of the comments [by the prosecutor] would have been betterleft unsaid" (People v Nadal, 131AD3d 729, 731 [2015], lv denied 26 NY3d 1041 [2015]), we find that the record as awhole fails to disclose that the prosecutor engaged in a "flagrant and pervasive pattern ofprosecutorial misconduct so as to deprive defendant of a fair trial" (People v Morrison, 127 AD3d1341, 1344 [2015] [internal quotation marks, brackets and citations omitted], lvdenied 26 NY3d 932 [2015]; seePeople v Jackson, 160 AD3d 1125, 1129 [2018], lv denied 31 NY3d 1149[2018]). Rather, given County Court's curative instructions, its subsequent charge to the juryinstructing that it was the People who maintained the burden of establishing defendant's guiltbeyond a reasonable doubt, the strength of the evidence against defendant and the fact thatdefendant was ultimately acquitted of the most serious charge, we cannot say that, but for theprosecutor's comments, the jury would not have convicted defendant (see People v Shamsuddin, 167 AD3d1334, 1336-1337 [2018]; People vHarris, 162 AD3d 1240, 1243 [2018], lv denied 32 NY3d 937 [2018]; compare People v Rupnarine, 140AD3d 1204, 1205-1206 [2016]; People v Casanova, 119 AD3d 976, 977-979 [2014]).
Nor do we find that defense counsel's failure to preserve certain arguments regardingprosecutorial misconduct and the introduction of allegedly improper Molineux evidenceconstituted the ineffective assistance of counsel. "A claimed violation of the constitutional rightto the effective assistance of counsel will not survive judicial scrutiny so long as the evidence,the law, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People v McCauley, 162 AD3d1307, 1309-1310 [2018] [internal quotation marks and citations omitted], lv denied32 NY3d 939 [2018]). Here, counsel made appropriate pretrial motions, opposed the People'sMolineux application, made appropriate objections at trial, thoroughly cross-examinedwitnesses and provided cogent opening and closing statements, consistently pursuing a strategyof establishing a justification defense and, ultimately, obtaining an acquittal of the most seriouscharge. Accordingly, viewing the record as a whole, we are satisfied that defendant was providedwith meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Cox, 129 AD3d 1210,1214-1215 [2015], lv denied 26 NY3d 966 [2015]).
Lastly, defendant's contention that the sentence imposed was harsh and excessive isunavailing. Although defendant has no previous criminal history, given the nature of defendant'scrime and the serious injuries inflicted, we find no abuse of discretion or extraordinarycircumstances warranting a reduction in the interest of justice (see CPL 470.15 [6] [b]; People v Gill, 168 AD3d 1140,1142 [2019]; People v Cole, 150AD3d 1476, 1482 [2017], lv denied 31 NY3d 1146 [2018]). Further, we find nosupport in the record for defendant's assertion that he was penalized for exercising his right totrial or that County Court acted in a vindictive manner in pronouncing sentence (see People v Somerville, 72 AD3d1285, 1288-1289 [2010]), as the sentence mirrored the sentence offered during defendant'splea negotiations.
Clark, Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.