Opinion
13904 Ind. No. 3796/16 Case No. 2018-03502
05-25-2021
The PEOPLE of the State of New York, Respondent, v. Gerard GONZALEZ, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Victoria Muth of counsel), for respondent.
Renwick, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered January 3, 2018, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of five years, unanimously affirmed.
The court properly admitted, as nonhearsay, statements made by bystanders to two police officers, when the officers responded to the scene of the assault. The statements provided relevant background information regarding police conduct in pursuing defendant into the subway (see Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 [1985] ; People v. Garcia, 25 N.Y.3d 77, 86, 7 N.Y.S.3d 246, 30 N.E.3d 137 [2015] ). To the extent any parts of the statements were not necessary for this purpose, any error was harmless in light of the minor significance of these portions of the statements and the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). Defendant's argument that the court failed to give an appropriate limiting instruction in this regard is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the omission was also harmless.
The portions of the prosecutor's summation to which defendant specifically objected were fair responses to the defense summation and do not warrant reversal. Defendant did not preserve any of his other challenges to the prosecutor's summation or opening statement, and we decline to review them in the interest of justice. As an alternative holding, we likewise find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
We perceive no basis for reducing the sentence.