Opinion
2015-07-22
The PEOPLE, etc., respondent, v. Marcus BRUCE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Allison Ageyeva of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Allison Ageyeva of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered July 19, 2012, convicting him of robbery in the first degree and robbery in the second degree (five counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court excused potential jurors based upon hardship without conducting a sufficient inquiry is unpreserved for appellate review ( see People v. Jordan, 125 A.D.3d 787, 787, 3 N.Y.S.3d 127; People v. Racks, 125 A.D.3d 692, 693, 2 N.Y.S.3d 598; People v. Brown, 123 A.D.3d 938, 939, 999 N.Y.S.2d 436) and, in any event, is without merit ( see People v. Johnson, 116 A.D.3d 883, 983 N.Y.S.2d 447; People v. King, 110 A.D.3d 1005, 1006, 973 N.Y.S.2d 353; People v. Umana, 76 A.D.3d 1111, 1112, 908 N.Y.S.2d 244; People v. Toussaint, 40 A.D.3d 1017, 1017–1018, 837 N.Y.S.2d 218).
The defendant's contention that the Supreme Court erred in granting the People's application to modify its Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) so as to allow certain underlying facts regarding a prior juvenile delinquency adjudication to be elicited on cross-examination of the defendant is unpreserved for appellate review ( seeCPL 470.05[2] ). In any event, this contention is without merit. As the court properly concluded, the defendant opened the door to such questioning when, on direct examination, he described the nature of the incident underlying the juvenile delinquency adjudication as a “prank” ( see People v. Eddo, 55 A.D.3d 922, 923, 868 N.Y.S.2d 213; People v. Brown, 11 A.D.3d 474, 475, 782 N.Y.S.2d 780; People v. Sims, 245 A.D.2d 316, 317, 666 N.Y.S.2d 433). Moreover, since the defendant raised the affirmative defense of duress, by which he implicitly denied any criminal intent to commit the crimes charged, the People were properly permitted to rebut that defense with evidence of the defendant's criminal disposition or inconsistent intent ( see People v. Calvano, 30 N.Y.2d 199, 205–206, 331 N.Y.S.2d 430, 282 N.E.2d 322; People v. Williams, 38 A.D.3d 577, 578, 833 N.Y.S.2d 515; People v. Maldonado, 5 A.D.3d 505, 506, 772 N.Y.S.2d 583).
The questions posed by the prosecutor during cross-examination of the defendant regarding his high school truancy record were also proper. The defendant opened the door to such questioning by testifying during direct examination that he was a high school graduate who was anticipating going to college, and by eliciting testimony from defense witnesses that he was responsible and a “good” kid who did not get into trouble ( see People v. O'Keefe, 105 A.D.3d 1062, 1063, 963 N.Y.S.2d 720; People v. Jackson, 100 A.D.3d 1018, 1018, 954 N.Y.S.2d 472).
The defendant contends that a question posed by the prosecutor regarding a comment that the defendant allegedly made before another judge was improper. However, since defense counsel did not seek further relief or move for a mistrial after the Supreme Court sustained his objection and struck the question from the record, this contention is unpreserved for appellate review ( see People v. Gill, 54 A.D.3d at 965–966, 864 N.Y.S.2d 135). In any event, the comment alleged to be prejudicial was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Similarly, with respect to a question posed by the prosecutor regarding a remark the defendant allegedly made to garner sympathy from the jury, the Supreme Court providently exercised its discretion in denying defense counsel's motion for a mistrial. In this regard, any possible prejudice to the defendant was ameliorated when the Supreme Court sustained defense counsel's objection, struck the question from the record, and provided a curative instruction to the jury ( see People v. Dubois, 116 A.D.3d 878, 878, 983 N.Y.S.2d 734; People v. Ray, 100 A.D.3d 933, 933–934, 954 N.Y.S.2d 199; see generally People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904). Moreover, neither of the challenged questions deprived the defendant of a fair trial.
The defendant's contention that the verdict sheet contained annotations not authorized by CPL 310.20(2) is unpreserved for appellate review and, in any event, without merit ( see People v. Lewis, 23 N.Y.3d 179, 187, 989 N.Y.S.2d 661, 12 N.E.3d 1091; People v. Cole, 85 N.Y.2d 990, 991–992, 629 N.Y.S.2d 166, 652 N.E.2d 912; People v. Nunez, 120 A.D.3d 714, 716, 991 N.Y.S.2d 121; People v. Cardenas, 239 A.D.2d 594, 658 N.Y.S.2d 992; People v. Simpson, 222 A.D.2d 462, 635 N.Y.S.2d 47).