- November 21, 2017
Skip Laisure, New York, NY (Laura B. Tatelman of counsel),
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove
and Jill Oziemblewski of counsel), for respondent.
C. BALKIN, J.P. L. PRISCILLA HALL SYLVIA O. HINDS-RADIX LINDA
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (William M. Harrington, J.), rendered February 4,
2015, convicting him of assault in the second degree, upon a
jury verdict, and imposing sentence.
that the judgment is modified, on the law, by vacating the
sentence imposed; as so modified, the judgment is affirmed,
and the matter is remitted to the Supreme Court, Kings
County, for further proceedings consistent herewith.
defendant was convicted of assault in the second degree based
on an allegation that he stabbed the complainant on a
Brooklyn sidewalk. The defendant's challenge to the legal
sufficiency of the evidence supporting his conviction is
unpreserved for appellate review (see CPL 470.05;
People v. Kolupa, 13 N.Y.3d 786, 787; People v.
Hawkins, 11 N.Y.3d 484, 492; People v. Hines,
97 N.Y.2d 56, 61). In any event, viewing the evidence in the
light most favorable to the prosecution (see People v.
Contes, 60 N.Y.2d 620, 621), we find that it was legally
sufficient to establish the defendant's guilt (see
People v. Danielson, 9 N.Y.3d 342, 349). 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 at
348-349), 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).
to the defendant's contention, the Supreme Court did not
err in granting the People's Molineux
application (see People v. Molineux, 168 NY 264).
Prior to trial, the People made an application to introduce
evidence that the defendant had engaged in a domestic dispute
with a woman with whom he and the complainant each have a
child, and that hours before the stabbing, the complainant
confronted the defendant verbally about the domestic dispute
and about the fact that the defendant had visited the
woman's home in violation of an order of protection. The
People theorized that the defendant stabbed the complainant
as retaliation for the verbal dispute between the complainant
and the defendant. The court stated that, although the People
would not be allowed to "go into very much detail about
what the allegations are, '' it would allow the
People to introduce the proffered evidence "for the
purpose of letting the jury know what the background was for
the allegations in this case, as well as to prove the element
of intent." The evidence permitted was relevant to
establish the defendant's motive and intent (see
People v. Till, 87 N.Y.2d 835, 837; People v.
Gomez, 153 A.D.3d 724, 725; People v.
Rodriguez, 148 A.D.3d 938). The court providently
exercised its discretion in determining that the probative
value of this evidence outweighed any potential prejudice to
the defendant (see People v. Morris, 21 N.Y.3d 588,
595-597; People v. Gomez, 153 A.D.3d at 725).
Supreme Court providently exercised its discretion in denying
the defendant's request for a mistrial based on the
prosecutor's alleged violation of the court's
Molineux ruling. The prejudicial effect of the
allegedly improper testimony was not so great that it
deprived him of his right to a fair trial in light of the
court's action in striking the challenged testimony and
issuing curative instructions to the jury (see People v.
Macaluso, 144 A.D.3d 947; People v. Smith, 143
A.D.3d 1005, 1005-1006; People v. Ragsdale, 68
A.D.3d 897, 898; People v. Jackson, 59 A.D.3d 637,
defendant's contention that the prosecutor committed
prosecutorial misconduct in her summation is unpreserved for
appellate review, as the defendant failed to move for a
mistrial or request further relief when the Supreme Court
gave curative instructions (see People v. Choi, 137
A.D.3d 808, 810; People v. Murphy, 133 A.D.3d 690,
690-691; People v Ambers, 115 A.D.3d 671, 672,
affd 26 N.Y.3d 313). In any event, the defendant was
not deprived of a fair trial, as the challenged comment was
isolated and any prejudice therefrom was alleviated by the
curative instructions (see People v. McManus, 150
A.D.3d 762, 763; People v. Rios, 105 A.D.3d 873;
People v. Rayford, 80 A.D.3d 780, 781).
720.20(1) requires a court to make a youthful offender
determination in every case where the defendant is eligible,
even where the defendant fails to request it (see People
v. Rudolph, 21 N.Y.3d 497, 501). Here, as the People
correctly concede, the record does not demonstrate that the
Supreme Court made such a determination. Accordingly, we
vacate the sentence imposed, and remit the matter to the
Supreme Court, Kings County, for resentencing after making
this determination (see People v. Miller, 147 A.D.3d
783, 783-784; People v. Alston, 145 A.D.3d 737). We
express no opinion as to whether the court should afford
youthful offender status to the defendant.
defendant's remaining contentions are without merit.
BALKIN, J.P., HALL, HINDS-RADIX and ...