Opinion
02-09-2024
The PEOPLE of the State of New York, Respondent, v. Jevon GAITER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (James F. Bargnesi, J.), rendered January 19, 2022. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [1]), arising from a confrontation during which defendant caused a fatal slash wound to the victim’s throat with a weapon with a sharp edge that one eyewitness described as having made a clicking sound as defendant removed it from his pocket prior to slashing the victim. We affirm.
[1–3] Defendant contends that County Court erred in ruling, on his motion in limine, that limited use of his nickname, "Animal," would be permitted during trial. We reject that contention. Inasmuch as certain witnesses knew defendant only by his nickname, "it was permissible for the People to elicit testimony regarding [the] nickname[ ] at trial for identification purposes" (People v. Tolliver, 93 A.D.3d 1150, 1150, 940 N.Y.S.2d 398 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012]; see People v. Vanalst [Appeal No, 2], 148 A.D.3d 1658, 1659, 50 N.Y.S.3d 729 [4th Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017]; cf. People v. Collier, 114 A.D.3d 1136, 1137, 979 N.Y.S.2d 726 [4th Dept. 2014]). Relatedly, defendant contends that the prosecutor exceeded the scope of the court’s ruling and deprived him of a fair trial by repeatedly referring to him by his nickname, and that the court erred in failing to provide limiting or curative instructions to the jury. Defendant failed to preserve those contentions for our review (see CPL 470.05 [2]; People v. Tuff, 156 A.D.3d 1372, 1377, 68 N.Y.S.3d 273 [4th Dept. 2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018]; Vanalst, 148 A.D.3d at 1659, 50 N.Y.S.3d 729), and we decline to, exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant’s contention that he was deprived of a fair trial due to other alleged instances of prosecutorial misconduct "is unpreserved for our review inasmuch as defendant did not object to any of [those] alleged instances of misconduct" (People v. Pendergraph, 150 A.D.3d 1703, 1703, 54 N,Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017]; see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v. Watts, 218 A.D.3d 1171, 1174, 195 N.Y.S.3d 330. [4th Dept. 2023], lv denied 40 N.Y.3d 1013, 199 N.Y.S.3d 17, 222 N.E.3d 533 [2023]).
[4] Defendant also contends that the court, in its Molineux ruling, erred in refusing to redact from a videotaped police interview of defendant the references to an incident that occurred about a week before the confrontation during which the police, upon approaching defendant to address a noise complaint, discovered that he possessed a box cutter in his pocket. Even assuming, arguendo, that defendant’s recent prior possession of a box cutter constitutes Molineux evidence (see generally People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981]; People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901]), we conclude that the court properly admitted the references thereto because that evidence tended to undermine defendant’s claims that the victim came at him with a knife and that defendant had no weapon at the crime scene, and the court did not abuse its discretion in determining that the probative value thereof outweighed the potential for prejudice (see People v. Camarena, 289 A.D.2d 7, 8, 734 N.Y.S.2d 14 [1st Dept. 2001], lv denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358 [2002]; see generally People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987]). We have reviewed defendant’s remaining contentions concerning alleged evidentiary errors and conclude that they are either unpreserved, or lack merit.
[5] Contrary to defendant’s contention, the court properly denied his request for an intoxication charge. Viewing the evidence in the light most favorable to defendant (see People v. Beaty, 22 N.Y.3d 918, 921, 977 N.Y.S.2d 172, 999 N.E.2d 535 [2013]; People v. Farnsworth, 65 N.Y.2d 734, 735, 492 N.Y.S.2d 12, 481 N.E.2d 552 [1985]), we conclude that "the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication" (Beaty, 22 N.Y.3d at 921, 977 N.Y.S.2d 172, 999 N.E.2d 535; see People v. Barill, 120 A.D.3d 951, 953, 991 N.Y.S.2d 214 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014], reconsideration denied 25 N.Y.3d 949, 7 N.Y.S.3d 278, 30 N.E.3d 169 [2015], cert denied 577 U.S. 865, 136 S.Ct. 158, 193 L.Ed.2d 117 [2015]).
[6] Contrary to defendant’s further contentions, we conclude that, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), the evidence is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]) and, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielsony 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Finally, the sentence is not unduly harsh or severe.