Opinion
11824 Ind. 1974/16
07-16-2020
The PEOPLE of the State of New York, Respondent, v. Matthew PIERRE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Steven Benathen of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Steven Benathen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), for respondent.
Gische, J.P., Kapnick, Webber, Kern, Gonza´lez, JJ.
Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered July 16, 2018, convicting defendant, after a jury trial, of assault in the second degree, criminal mischief in the third degree and auto stripping in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 9 to 11 years, unanimously affirmed.
The court providently exercised its discretion when it modified its Sandoval ruling after defendant's direct testimony, finding that his testimony that he was "not [ ] a trouble maker" opened the door to limited inquiry regarding two prior assault convictions (see e. g. People v. Feliciano, 133 A.D.3d 469, 18 N.Y.S.3d 864 [1st Dept. 2015], lv denied 27 N.Y.3d 1150, 39 N.Y.S.3d 385, 62 N.E.3d 125 [2016] ). However, the court erroneously determined, and instructed the jury, that evidence of the two prior convictions could be considered as affirmative evidence of guilt, relevant to the charged mental state and the validity of defendant's justification defense (see People v. Bradley, 20 N.Y.3d 128, 133–34, 958 N.Y.S.2d 650, 982 N.E.2d 570 [2012] ). In that context, the evidence at issue cannot be differentiated from propensity evidence. Nevertheless, any error in either the Sandoval or Molineux aspects of the court's rulings was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). There was overwhelming evidence that defendant brutally attacked an elderly tourist and damaged a bus, and there is no reasonable possibility that the jury would have accepted his incredible testimony (see People v. Hall, 18 N.Y.3d 122, 132, 936 N.Y.S.2d 630, 960 N.E.2d 399 [2011] [considering defendant's "ridiculous explanation" in harmless error analysis] ).
Defendant did not preserve his challenge to a remark by the prosecutor in summation, and we decline to review it in the interest of justice. As an alternative holding, we find that this isolated use of disapproved language (see People v. Jones, 125 A.D.3d 403, 406, 2 N.Y.S.3d 455 [1st Dept. 2015] ) was not so egregious as to require reversal, and that the error was harmless. Defendant's related ineffective assistance of counsel claim is unavailing, because he has not established that his counsel's lack of objection was unreasonable or prejudicial (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.