Opinion
15703 Ind. No. 6353/09 Case No. 2016–2092
04-12-2022
The PEOPLE of the State of New York, Respondent, v. Felipe Rivera CRUZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel), and Boies Schiller Flexner LLP, New York (Nicholas J. Standish of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (David Crow of counsel), and Boies Schiller Flexner LLP, New York (Nicholas J. Standish of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 4, 2013, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed. Defendant preserved his challenge to the court's initial Sandoval ruling, but failed to preserve his challenge to the court's ruling that the defense expert's testimony opened the door to cross-examination of both the expert and defendant about additional prior bad acts, and we decline to review it in the interest of justice. As an alternative holding, we find that all of those rulings were provident exercises of discretion. Defendant's history of violent crime was relevant not only to his credibility, but also to rebut the expert's testimony in support of defendant's extreme emotional disturbance defense (see People v. Cass, 18 N.Y.3d 553, 563, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ). Any prejudice was minimized by the court's limiting instructions, which the jurors presumably followed (see People v. Morris, 21 N.Y.3d 588, 598, 976 N.Y.S.2d 682, 999 N.E.2d 160 [2013] ). Moreover, any error was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant did not preserve his claim that the court should have charged first-degree manslaughter as a lesser included offense of second-degree murder based on the theory that, as a result of intoxication, defendant acted only with intent to cause serious physical injury rather than death. The record of the charge conference makes clear that defense counsel was requesting submission of first-degree manslaughter only on the basis of the affirmative defense of extreme emotional disturbance, which, if accepted, reduces a murder charge accordingly ( Penal Law § 125.25[1][a] ). Counsel made no further requests regarding lesser included offenses, and we decline to review defendant's unpreserved claim in the interest of justice. As an alternative holding, we find that there was no reasonable view of the evidence, viewed in the light most favorable to defendant, that he intended to cause serious physical injury but not death (see e.g. People v. Vega, 68 A.D.3d 665, 892 N.Y.S.2d 355 [1st Dept. 2009], lv denied 14 N.Y.3d 806, 899 N.Y.S.2d 141, 925 N.E.2d 945 [2010], cert denied 562 U.S. 925, 131 S.Ct. 308, 178 L.Ed.2d 200 [2010] ).
We perceive no basis for reducing the sentence.