| People v Magnan |
| 2019 NY Slip Op 05154 [173 AD3d 1214] |
| June 26, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Magnan, Appellant. |
Lawrence J. Fredella, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, andJordan Cerruti of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (AlbertTomei, J.), rendered July 1, 2014, convicting him of murder in the second degree, manslaughterin the first degree, attempted robbery in the first degree, and menacing in the second degree, upona jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
After a jury trial, the defendant was convicted of murder in the second degree, manslaughterin the first degree, attempted robbery in the first degree, and menacing in the second degree. Theevidence at trial demonstrated that the defendant used a gun to bang on the window of a cardriven by Steve Pintro while the car was stopped at a red light, causing Pintro to speed away. Thetrial evidence further demonstrated that the defendant attempted to rob the driver of a livery cab,Eric Martine, and his two passengers, Elizabeth Filatova and Nikita Grebelsky, at gunpoint whilethe cab was stopped at a red light. After demanding money and jewelry from Martine, Filatova,and Grebelsky, the defendant reached his hand into Martine's pants pocket. While the defendantwas temporarily distracted, Martine punched the defendant in the face and drove off. Thedefendant shot into the livery cab several times, striking Grebelsky in the head and killing him.The defendant was apprehended shortly after the shooting a few blocks away from the crimescene and was identified by Martine as the shooter.
At trial, Martine and Pintro identified the defendant, and DNA and ballistics evidence linkedthe defendant to the murder weapon. The Supreme Court permitted the People to elicittestimony and introduce surveillance video evidence demonstrating that, prior to the commissionof the charged crimes, a person matching the defendant's description and wearing clothing similarto that worn by the defendant when he was arrested threatened to commit a robbery outside anightclub a few blocks away from the crime scene, robbed one of the nightclub's patrons of agold chain, and threatened to come back and "shoot [the nightclub] up" if anyone tried to stophim.
To the extent that the defendant contends that the Supreme Court erred in itsSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]), the ruling did notdeprive the defendant of a fair trial, and any other error was harmless since the proof of thedefendant's guilt was overwhelming and there was no reasonable possibility that the jury wouldhave acquitted him had the error not occurred (see People v Grant, 7 NY3d 421, 425 [2006]; People vCrimmins, 36 NY2d 230, 237-238 [1975]). Martine identified the defendant as the personwho attempted to rob him, Filatova, and Grebelsky, and who shot and killed Grebelsky. Pintroalso identified the defendant as the person who menaced him with a gun. The descriptions of theperson who committed the attempted robbery, murder, and menacing matched the defendant'sphysical characteristics and the clothing he was wearing at the time of his arrest. Surveillancevideo depicted an individual in the immediate vicinity of the area where the charged crimesoccurred having the physical characteristics and wearing clothes matching the defendant. Thedefendant's DNA was found on the gun identified as the murder weapon. The murder weaponwas recovered in close proximity to where the defendant was apprehended. Finally, after thedefendant was apprehended and taken to the police precinct, an officer removed the defendant'ssneakers and placed them on the floor, placed the defendant in a cell, and, upon returning toretrieve the sneakers, discovered a shell casing "in between the right and the left shoe." Theevidence showed that this shell casing was fired from the gun that killed Grebelsky.The defendant contends that the Supreme Court deprived him of a fair trial by permitting thePeople to introduce evidence of an uncharged robbery because the court failed to determine thatthe defendant committed that robbery, that the uncharged robbery evidence involved a uniquemodus operandi, or that the probative value of the uncharged robbery evidence outweighed itsprejudicial effect. This contention is unpreserved for appellate review (see CPL 470.05[2]; People v Pettiford, 28 AD3d687 [2006]). In any event, the contention is without merit. Evidence of uncharged crimes isgenerally excluded under the Molineux rule (see People v Molineux, 168 NY 264[1901]; People v Harris, 117 AD3d847, 854 [2014], affd 26 NY3d 1 [2015]). Nevertheless, evidence of prior unchargedcrimes may be received if it is relevant to some issue other than the defendant's criminaldisposition, such as where it tends to show intent (see People v Morris, 21 NY3d 588 [2013]; People v Arafet, 13 NY3d 460,465 [2009]; People v Ventimiglia, 52 NY2d 350, 359 [1981]). "Where there is a propernonpropensity purpose, the decision whether to admit evidence of [a] defendant's prior bad actsrests upon the trial court's discretionary balancing of probative value and unfair prejudice" (People v Dorm, 12 NY3d 16, 19[2009]).
Here, we agree with the Supreme Court's determination to permit the People to elicittestimony and introduce surveillance video evidence related to the uncharged robbery. Theelicited testimony was probative of the defendant's intent, which the defendant had placed intodispute by arguing, inter alia, that he was high on drugs and could not form the requisite intentor, alternatively, that he shot the gun recklessly in response to be being punched. The challengedevidence demonstrated that a man wearing identical clothing to that worn by the defendant whenhe was arrested stated his intention to rob people and actually robbed someone using the threat ofa gun. It also demonstrated that a physical description given matched the defendant's height,complexion, and age. Thus, this evidence tended to show the defendant's intent to commit thecharged crimes (see People vAlfaro, 19 NY3d 1075 [2012]). The court providently exercised its discretion indetermining that the probative value of the evidence in question outweighed the risk of prejudiceto the defendant, and the limiting instruction given to the jury served to alleviate any prejudiceresulting from the admission of the evidence (see People v Yusuf, 104 AD3d 881, 883 [2013]).
The defendant's contention that certain remarks made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review, since he failed to object to thechallenged remarks at trial (see CPL 470.05 [2]; People v Linley, 60 AD3d 696 [2009]). In any event, the majorityof the challenged comments constituted fair comment on the evidence or the reasonableinferences to be drawn therefrom, constituted fair response to arguments made by defensecounsel in summation, or were within the broad bounds of rhetorical comment permissible insummation (see People v Baez, 137AD3d 805 [2016]). To the extent that a few of the comments were improper, these errorswere not, either individually or collectively, so egregious as to have deprived the defendant of afair trial (see People v Alphonso,144 AD3d 1168 [2016]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit. Rivera, J.P., Chambers, Cohen andBarros, JJ., concur. [Prior Case History: 2014 NY Slip Op 32166(U).]