| People v Anderson |
| 2021 NY Slip Op 04757 [197 AD3d 713] |
| August 25, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tristan N. Anderson, Appellant. |
Patricia Pazner, New York, NY (De Nice Powell of counsel), for appellant, and appellant prose.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, Cindy L.Horowitz, and Abed Z. Bhuyan of counsel), for respondents.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (MatthewSciarrino, J.), rendered May 1, 2017, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court did not err in permitting the admission into evidence of the defendant'sprior arrest for strangulation of the victim, as the evidence provided the necessary background asto the relationship between the defendant and the victim and completed the narrative of theinvestigation (see People v Smith,186 AD3d 1269, 1270 [2020]; People v Graham, 159 AD3d 1022, 1023 [2018]). Furthermore, theprobative value of the evidence outweighed the risk of prejudice to the defendant, and the court'slimiting instructions to the jury served to alleviate any prejudice from the admission of thatevidence (see People v Nieves, 186AD3d 1260, 1261 [2020]; People vGross, 172 AD3d 741, 742 [2019]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during the People's opening statement and summation is unpreserved for appellatereview since the defendant failed to object to the remarks at issue (see CPL 470.05 [2];People v Romero, 7 NY3d 911,912 [2006]; People v Beer, 146AD3d 895, 897 [2017]). In any event, most of the challenged remarks were proper becausethey were within the broad bounds of rhetorical comment permissible in closing arguments,constituted a fair response to arguments made by defense counsel in summation, or constitutedfair comment on the evidence (seePeople v Quezada, 116 AD3d 796, 798 [2014]). Additionally, the challenged portion ofthe opening statement was not improper since it was consistent with the evidence the Peopleproceeded to present (see People vWallace, 123 AD3d 1151, 1152 [2014]). To the extent that certain remarks wereimproper, they did not deprive the defendant of a fair trial, and defense counsel's failure to objectto those remarks did not constitute ineffective assistance of counsel (see People v Hawley, 112 AD3d968, 969 [2013]).
Contrary to the defendant's contention in his pro se supplemental brief, the Supreme Courtproperly denied his motion to reopen the suppression hearing (see CPL 710.40 [4]; People v [*2]Lawrence, 180 AD3d 1070, 1071-1072 [2020]). Moreover,to the extent the defendant argues that the notes within the memo books at issue were favorableto him, his contention is based on matters dehors the record and cannot be reached on directappeal (see People v Petion, 186AD3d 1410, 1411 [2020]; People vRedmon, 184 AD3d 775, 776 [2020]).
The defendant's remaining contentions are without merit. Chambers, J.P., Miller, Barros andIannacci, JJ., concur.