Opinion
2014-03141 Ind. No. 2043/11.
02-03-2016
The PEOPLE, etc., respondent, v. Paul E. MANIGAT, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Anastasia Spanakos, Christine DiSalvo, and Tina Grillo of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Anastasia Spanakos, Christine DiSalvo, and Tina Grillo of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered March 19, 2014, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The evidence presented at trial established that on Thanksgiving Day, November 24, 2011, the complainant was in her house eating dinner and looking out a window at her husband's car parked on the street when she saw the defendant fire a shot into that car. When the complainant stood up and screamed, the defendant pointed the gun at her. The complainant ducked under a table and the defendant fired another shot, which hit the frame of the kitchen window where the complainant had been standing. The shooting was related to a debt owed by the complainant's husband.
The People sought to present evidence, under Molineux (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286), of two phone calls the defendant made from Rikers Island following his arrest. In one phone call, the defendant threatened another person regarding payment of an unrelated debt. In the second phone call, the defendant discussed the matter of the unrelated debt with a third party, stating that the defendant was not scared of the police and would go to the debtor's house, “rag” him up, and “do the same thing again” if the debtor did not have all his money. The Supreme Court denied the People's application, but made a Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) that, should the defendant decide to testify, the People could ask him if he made calls to a certain individual threatening to “rack [him] up” if the individual did not have the defendant's money, but would not be permitted to play the recordings of the calls unless the defendant denied having made them. The defendant did not testify.
While, contrary to the People's contention, the defendant's challenge to the Sandoval ruling is preserved for appellate review (see CPL 470.052 ), we conclude that the Supreme Court providently exercised its discretion in making this ruling, and that the ruling did not deprive the defendant of the right to testify on his own behalf (see People v. Sandoval, 34 N.Y.2d at 374–378, 357 N.Y.S.2d 849, 314 N.E.2d 413). The phone calls were relevant to the issue of the defendant's credibility, because they demonstrated his willingness “to deliberately further his self-interest at the expense of society” (People v. Biear, 119 A.D.3d 599, 600, 987 N.Y.S.2d 896; see People v. Harris, 74 A.D.3d 984, 902 N.Y.S.2d 190; People v. Telesford, 2 A.D.3d 757, 770 N.Y.S.2d 118; People v. Hegdal, 266 A.D.2d 472, 473, 699 N.Y.S.2d 73). Moreover, the mere fact that the bad acts were similar or even identical in nature to the instant offenses did not warrant their preclusion, and the defendant is not shielded from impeachment because he chose to specialize in one type of criminal activity (see People v. Harris, 74 A.D.3d at 984–985, 902 N.Y.S.2d 190; People v. Springer, 13 A.D.3d 657, 787 N.Y.S.2d 386; People v. Sokolov, 245 A.D.2d 317, 318, 667 N.Y.S.2d 263). The fact that the defendant was the sole potential witness for the defense did not mandate a ruling prohibiting inquiry into his subsequent conduct, and only increased the importance of his credibility and his testimony (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Biear, 119 A.D.3d at 600, 987 N.Y.S.2d 896; People v. Garcia, 45 A.D.3d 860, 860–861, 847 N.Y.S.2d 147; People v. McLaurin, 33 A.D.3d 819, 826 N.Y.S.2d 279; People v. Cruz, 21 A.D.3d 967, 968, 801 N.Y.S.2d 65).
The defendant also challenges certain allegedly improper comments made by the prosecutor during summation. The defendant's contentions in this regard are largely unpreserved for appellate review (see CPL 470.052 ) since, with respect to the majority of the challenged comments, he failed to object, or made general objections that were sustained without any further request for curative instructions and were not the basis of his motion for a mistrial (see CPL 470.052; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Barton, 110 A.D.3d 1089, 1090, 973 N.Y.S.2d 760; People v. Read, 97 A.D.3d 702, 703, 947 N.Y.S.2d 614; People v. Parker–Davidson, 89 A.D.3d 1114, 933 N.Y.S.2d 603). In any event, those challenged comments were proper, as “they were within the broad bounds of rhetorical comment permissible in closing argument, constituted a fair response to arguments made by defense counsel in summation, or constituted fair comment on the evidence” (people v. barton, 110 a.d.3d at 1091, 973 N.y.s.2d 760; see people v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281; People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Hanson, 100 A.D.3d 771, 772, 953 N.Y.S.2d 684, revd. on other grounds 24 N.Y.3d 294, 998 N.Y.S.2d 154, 22 N.E.3d 1022). For this reason, defense counsel's failure to object to those comments did not constitute ineffective assistance of counsel. As to two comments the prosecutor made regarding an outburst by the defendant during the trial, to which the defendant's objection is preserved, the comments were improper, particularly since they were made in the face of the Supreme Court's explicit instructions to the jury to disregard the outburst and not hold it against the defendant. Nevertheless, the court sustained the objections to both comments, thereby “aborting prejudice by cutting short the argument[ ]” (People v. Galloway, 54 N.Y.2d at 399, 446 N.Y.S.2d 9, 430 N.E.2d 885). Reversal is not warranted since the prosecutor's comments did not, singly or in combination, deprive the defendant of a fair trial (see People v. McMillan, 130 A.D.3d 651, 654–655, 12 N.Y.S.3d 301; People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660; People v. Dunbar, 74 A.D.3d 1227, 1229, 905 N.Y.S.2d 222).