Opinion
2016–03612 Ind. No. 9503/09
03-23-2022
The PEOPLE, etc., respondent, v. Germaine GARCIA, appellant.
Patricia Pazner, New York, NY (Emily T. Lurie and Alice Cullina of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Rebecca Height of counsel), for respondent.
Patricia Pazner, New York, NY (Emily T. Lurie and Alice Cullina of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Rebecca Height of counsel), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John G. Ingram, J.), rendered March 11, 2016, convicting him of burglary in the second degree, criminal contempt in the first degree (two counts), menacing in the third degree, criminal mischief in the fourth degree, and attempted assault in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed.
The Supreme Court providently exercised its discretion in permitting the People to elicit evidence of the defendant's prior bad act involving the complainant (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ). The evidence was properly admitted as relevant background material to enable the jury to understand the defendant's relationship with the complainant and to explain the issuance of an order of protection (see People v. Winston, 169 A.D.3d 1361, 1362, 92 N.Y.S.3d 768 ; People v. Bittrolff, 165 A.D.3d 690, 691, 85 N.Y.S.3d 181 ; People v. Michel, 158 A.D.3d 649, 649, 67 N.Y.S.3d 849 ; People v. Walters, 127 A.D.3d 889, 889, 7 N.Y.S.3d 336 ). Moreover, although a contemporaneous limiting instruction should ordinarily be provided, defense counsel did not request one and the court properly instructed the jury during its final charge (see People v. Mitchell, 112 A.D.3d 1071, 1073, 977 N.Y.S.2d 136 ; People v. Norman, 40 A.D.3d 1128, 1129–1130, 837 N.Y.S.2d 694 ; People v. Thomas, 26 A.D.3d 241, 242, 808 N.Y.S.2d 687 ). The defendant's contention that he was deprived of a fair trial due to violations of the court's Molineux ruling is unpreserved for appellate review (see People v. Butler, 192 A.D.3d 1701, 1703, 144 N.Y.S.3d 518 ). In any event, the defendant was not deprived of a fair trial by any violation of the Molineux ruling, and any other error in this regard was harmless as the evidence of the defendant's guilt was overwhelming, and there was no significant probability that any error in this regard contributed to the defendant's convictions (see People v. Arafet, 13 N.Y.3d 460, 468, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. McClinton, 187 A.D.3d 1056, 1057, 131 N.Y.S.3d 249 ).
Based upon the record before us, the defendant received the effective assistance of counsel (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
The defendant's contentions regarding certain remarks made by the prosecutor in her opening statement and summation are unpreserved for appellate review (see CPL 470.05[2] ; People v. Jackson, 180 A.D.3d 930, 931, 120 N.Y.S.3d 61 ). In any event, the contentions either are without merit or relate to harmless error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.