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.
Decided on April 24, 2012
Mazzarelli, J.P., Sweeny, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered January 8, 2003, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him to concurrent terms of 25 years to life and 25 years, respectively, unanimously affirmed.
The court properly exercised its discretion when it precluded defendant from testifying that the murder victim had requested that defendant accompany him to court shortly before the homicide. This testimony's potential for prejudice substantially outweighed any probative value (see People v Mateo, 2 NY3d 383, 424-425 , cert denied 524 US 946 ). At most, this evidence tended to show that the murder victim did not consider defendant an enemy. However, this did little to contradict the People's theory that the murder and attempted murder were primarily motivated by gang politics rather than animosity toward the victims. Moreover, the precluded testimony was irrelevant to anything other than the victim's state of mind and cumulative to other evidence that the court received. The unexplained reference to a court case carried the potential for speculation and prejudice.
Defendant did not preserve his claim that the court erred in precluding him from testifying about another statement by the murder victim (see People v George, 67 NY2d 817, 819 ), or any constitutional arguments regarding either of the precluded statements (see People v Lane, 7 NY3d 888, 889 ), and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits (see Crane v Kentucky, 476 US 683, 689-690 ). We also reject defendant's related claim of ineffective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 ; Strickland v Washington, 466 US 668 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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