Robert C. Mitchell, Riverhead, N.Y. (John M. Dowden of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (R. Doyle, J.), both rendered May 26, 2010, convicting him, upon a jury verdict, of (1) attempted assault in the second degree as a hate crime under Indictment No. 236-09, and (2) manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under Indictment No. 3032-08, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant was convicted of several crimes charged in connection with three separate attacks upon Hispanic men occurring on two separate dates, November 3, 2008, and November 8, 2008. During the course of the third incident, the defendant stabbed Marcelo Lucero, causing his death. After a joint trial of the charges, the defendant was convicted of attempted assault in the second degree as a hate crime under Indictment No. 236-09, in connection with the incident of November 3, 2008, and manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the fourth degree, and attempted assault in the second degree as a hate crime (two counts), under Indictment No. 3032-08, in connection with the incidents of November 8, 2008.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of the crimes charged beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633; People v Hartman, 64 A.D.3d 1002; People v Chowdhury, 22 A.D.3d 596, 597; People v Stoby, 4 A.D.3d 766; People v Kenward, 266 A.D.2d 155).
The indictments against the defendant were properly joined for trial, inter alia, on the ground that proof of each offense was material and admissible as evidence in chief of the other offenses (see CPL 200.20; People v Latimer, 24 A.D.3d 807). Further, evidence of uncharged crimes committed by the defendant and his codefendants, and prior statements or acts of animosity or hostility, were properly admitted under the circumstances of this case, to complete the narrative of the events, provide background material, and as evidence of motive or state of mind with respect to the crimes charged (see People v Till, 87 N.Y.2d 835, 837; People v Morris, 89 A.D.3d 1112, 1113, lv granted 19 N.Y.3d 964; People v Mena, 71 A.D.3d 475, 476; People v Alas, 44 A.D.3d 534).
The trial court providently exercised its discretion in precluding the defendant from presenting, for impeachment purposes, extrinsic evidence of a prosecution witness's prior statements to law enforcement officials, which omitted references to epithets against Hispanics (see People v Duncan, 46 N.Y.2d 74, 80, cert denied 442 U.S. 910). The witness did not deny making those statements; rather, he explained the discrepancies by claiming that his statements to the police were made in the early hours of the morning, just after he was notified of the death of his friend. Therefore, the admission of extrinsic evidence of these prior statements would have been cumulative (cf. People v Washington, 51 N.Y.2d 214, 221; Jerome Prince, Richardson on Evidence § 6-411, at 406 [Farrell 11th ed]).
The defendant contends that the trial court improperly denied his request to instruct the jury with respect to criminally negligent homicide as a lesser-included offense of manslaughter in the first degree as a hate crime. The trial court granted his alternate request to instruct the jury with respect to the lesser-included offense of manslaughter in the second degree, but the jury convicted the defendant of manslaughter in the first degree as a hate crime, as charged in the indictment. Therefore, review of the trial court's refusal to charge the remote lesser-included offense of criminally negligent homicide is foreclosed (see People v Green, 5 N.Y.3d 538, 545; People v Boettcher, 69 N.Y.2d 174, 180; People v McGeachy, 74 A.D.3d 989; People v McLeod, 38 A.D.3d 798, 799; People v McMurry, 30 A.D.3d 444). Further, by convicting the defendant of manslaughter in the first degree as a hate crime, the jury found that the defendant intended to inflict serious physical injury on the victim Marcelo Lucero (see Penal Law § 125.20). Therefore, the trial court's refusal to instruct the jury with respect to gang assault in the second degree as a lesser-included offense of gang assault in the first degree (see Penal Law §§ 120.06, 120.07) also does not warrant reversal (see People v Rodriguez, 16 N.Y.3d 341, 346; People v Ribowsky, 77 N.Y.2d 284, 292; People v Albino, 65 N.Y.2d 843; People v Degondea, 269 A.D.2d 243, 245).
During deliberations, the jury specifically requested to hear the "cross-examination of Detective John McLeer." After consulting with counsel for the parties, the trial court properly denied the defense counsel's request for a reading of additional testimony, since the court had no obligation "to direct the reading of testimony beyond that requested" (People v Murray, 258 A.D.2d 936, 937; see People v Almodovar, 62 N.Y.2d 126, 132).
The defendant's remaining contentions are without merit.
MASTRO, J.P., DICKERSON, SGROI and HINDS-RADIX, JJ., ...