Judgment, Supreme Court, New York County (William A. Wetzel, J.), rendered June 9, 2008, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in the first degree, criminal possession of a controlled substance in the third and fourth degrees and two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 22½ years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., DeGrasse, Freedman, Manzanet-Daniels, RomÁn, JJ.
The verdict was not against the weight of the evidence (People v Danielson, 9 NY3d 342 ). There is no basis for disturbing the jury's determinations concerning credibility and identification. The victim's reliable identification of defendant was extensively corroborated by physical evidence and police testimony.
The court properly exercised its discretion in permitting the People to elicit defendant's racially offensive statements to the police shortly after the shooting. We conclude that, in the context of the case, this evidence was more probative than prejudicial. Although defendant was not charged with hate crimes under Penal Law § 485.05, and motive was not an element to be proven, motive was nevertheless an important issue. While the prosecution contended that defendant shot the victim seven times in revenge for an insult, the defense argued that such an overreaction to trivial teasing was implausible. Accordingly, defendant's racially charged comments tended to explain the overreaction by showing that defendant's intense racism was a contributing factor. In addition, there was a relationship between the statements at issue and epithets used by the assailant during the crime that was sufficient to make the statements relevant to the issue of identity. Defendant's remaining contentions concerning this evidence are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
M-577 - People v Pedro Mena Motion seeking leave to file pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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