Opinion
11-23-2016
The PEOPLE, etc., respondent, v. Woody BORGELLA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Gamaliel Marrero of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Gamaliel Marrero of counsel), for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, BETSY BARROS and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 3, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court erred, in its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ), in permitting the People to elicit testimony from the defendant regarding a comment posted on his Facebook page, since the comment was not probative of the defendant's credibility (see People v. Anderson, 130 A.D.3d 1055, 1056, 15 N.Y.S.3d 103, lv. granted 26 N.Y.3d 1142, 32 N.Y.S.3d 56, 51 N.E.3d 567 ; see generally People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804 ). The Supreme Court further erred in permitting the People to elicit testimony from certain witnesses regarding the defendant's alleged gang affiliation and involvement in a prior violent incident. Contrary to the People's contention and the Supreme Court's conclusion, the defendant did not introduce evidence that could properly be construed as character evidence and, thus, it was improper to permit the People to elicit evidence as to the defendant's alleged prior bad acts on that basis (see People v. Kuss, 32 N.Y.2d 436, 443, 345 N.Y.S.2d 1002, 299 N.E.2d 249 ; People v. Maier, 77 A.D.3d 681, 683, 908 N.Y.S.2d 711 ; People v. Jones, 278 A.D.2d 246, 247–248, 717 N.Y.S.2d 270 ). In addition, the Supreme Court improperly modified its Sandoval ruling by permitting the prosecutor to question the defendant regarding his alleged gang affiliation and the prior violent incident, as the defendant did not “open the door” to the otherwise precluded evidence (see People v. Wongsam, 105 A.D.3d 980, 981, 963 N.Y.S.2d 345 ; People v. Seabrooks, 82 A.D.3d 1130, 1131, 918 N.Y.S.2d 797 ). Nevertheless, these errors were harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the errors contributed to his convictions (see People v. Kucmierowski, 103 A.D.3d 755, 756, 959 N.Y.S.2d 708 ; People v. Jean–Louis, 74 A.D.3d 1093, 905 N.Y.S.2d 615 ; People v. Duggins, 1 A.D.3d 450, 451, 766 N.Y.S.2d 702, affd. 3 N.Y.3d 522, 788 N.Y.S.2d 638, 821 N.E.2d 942 ). Moreover, the errors, considered singularly and cumulatively, did not deprive the defendant of a fair trial.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in admitting a photograph of the decedent since the photograph was not offered solely to arouse the emotions of the jury and to prejudice the defendant, but, rather, to illustrate other relevant evidence pertaining to the defendant's justification defense (see People v. Aguilar, 79 A.D.3d 899, 900, 912 N.Y.S.2d 676 ; People v. Sampson, 67 A.D.3d 1031, 1032, 890 N.Y.S.2d 557 )