| People v Smith |
| 2020 NY Slip Op 04875 [186 AD3d 1269] |
| September 2, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Katrell Smith, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, andAndrew S. Durham of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael A.Gary, J.), rendered March 9, 2017, convicting him of burglary in the first degree (two counts) andpredatory sexual assault (six counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On November 14, 2014, the defendant forced his way into the apartment of the femalecomplainant, with whom he once had a relationship. He did so by demanding that the malecomplainant, who had just left the apartment, knock on the door. Once inside the apartment, thedefendant raped the female complainant at knifepoint and forced the female complainant and themale complainant to perform oral sex on each other. After a jury trial, the defendant wasconvicted of two counts of burglary in the first degree and six counts of predatory sexualassault.
The defendant's contention that the grand jury proceedings were impaired because the malecomplainant gave certain perjured testimony is partially unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit. Contrary to the defendant'scontention, the indictment was sufficiently supported by competent evidence, and the falsetestimony was immaterial (see People vSalvodon, 127 AD3d 1239, 1241 [2015]; People v Johnson, 54 AD3d 636, 636 [2008]). Moreover, there wasno suggestion that the prosecutor knew that the male complainant's testimony was false at thetime it was given (see People v Salvodon, 127 AD3d at 1241; People v Johnson,54 AD3d at 636).
The defendant's contention that the evidence was legally insufficient to support hisconvictions of three counts of predatory sexual assault is unpreserved for appellate review(see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt of those counts beyond a reasonable doubt. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guiltas to those counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The Supreme Court did not err in permitting the admission into evidence of two prioruncharged incidents involving the defendant threatening the female complainant. In domesticviolence cases such as this one, evidence of the prior incidents is admissible " 'becausethe aggression and bad acts are focused on one particular person, demonstrating the defendant'sintent, motive, identity and absence of mistake or accident,' and provides the necessarybackground as to the relationship" between the defendant and the complainant (People v Graham, 159 AD3d1022, 1023 [2018], quoting Peoplev Womack, 143 AD3d 1171, 1173 [2016]). Moreover, any potential for prejudice wasoffset by the court's limiting instructions (see People v Morris, 21 NY3d 588, 590 [2013]; People vGraham, 159 AD3d at 1023).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Rivera, J.P., Balkin, Leventhal andIannacci, JJ., concur.