Opinion
2001-08759.
Decided February 9, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered September 10, 2001, convicting him of murder in the second degree, assault in the third degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anne C. Feigus of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE and BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant was convicted of intentional murder for stabbing to death one of his two victims, and assault in the third degree and unlawful imprisonment in the second degree for attacking, binding, and gagging his other victim, who was his longtime girlfriend and the first cousin of the decedent. On appeal, the defendant contends that the Supreme Court committed reversible error by permitting the prosecutor to elicit evidence that, on several prior occasions, he became physically abusive with his girlfriend. Contrary to the defendant's contention, evidence of these prior uncharged acts was properly admitted because it was probative of his intent, and rebutted his defense of justification ( see People v. Alvino, 71 N.Y.2d 233, 241-242; People v. Molineux, 168 N.Y. 264, 293; People v. Bierenbaum, 301 A.D.2d 119, 150, lv denied 99 N.Y.2d 626, cert denied US, 124 S Ct 134; People v. Jones, 289 A.D.2d 257, 258; People v. Corella, 281 A.D.2d 428, 429; People v. Wheeler, 257 A.D.2d 673). Moreover, the probative value of the evidence outweighed any prejudice to the defendant ( see People v. Ventimiglia, 52 N.Y.2d 350, 359-360; People v. Bierenbaum, supra; cf. People v. Ely, 68 N.Y.2d 520, 529).
The defendant further contends that he was deprived of a fair trial by the prosecutor's tactic of essentially forcing him to testify on cross-examination that he believed that both the surviving victim and the arresting officer were lying. The claim is unpreserved for appellate review because no objection was made to such questioning of the defendant at the trial ( see People v. Smith, supra; cf. People v. Sansevero, 185 A.D.2d 256). In any event, although we disapprove of this manner of questioning ( see People v. Berrios, 298 A.D.2d 597; People v. Smith, 199 A.D.2d 439, 440), any error committed by the prosecutor in pursuing this line of questioning was harmless in light of the overwhelming evidence of the defendant's guilt ( see People v. McGlone, 222 A.D.2d 529; People v. Smith, supra; People v. Montgomery, 103 A.D.2d 622).
ALTMAN, J.P., KRAUSMAN, CRANE and COZIER, JJ., concur.