Opinion
2012-07-26
The PEOPLE of the State of New York, Respondent, v. Lamarr REID, Appellant.
Bruce Evans Knoll, Albany, for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Bruce Evans Knoll, Albany, for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: MERCURE, J.P., ROSE, MALONE JR., STEIN and McCARTHY, JJ.
McCARTHY, J.
Appeal (upon remittal from the Court of Appeals) from a judgment of the County Court of Albany County (Breslin, J.), rendered June 1, 2007, upon a verdict convicting defendant of the crime of murder in the second degree.
When this appeal was previously before this Court, we found that the integrity of the grand jury was not impaired, defendant's letters were properly admitted at trial, and the conviction was supported by legally sufficient evidence and not against the weight of the evidence (82 A.D.3d 1495, 919 N.Y.S.2d 560 [2011],revd. 19 N.Y.3d 382, 948 N.Y.S.2d 223, 971 N.E.2d 353 [2012] ). We found that defendant was entitled to a new trial, however, based on questioning by the People that implicated defendant's right to confront witnesses ( id. at 1497–1498, 919 N.Y.S.2d 560). The Court of Appeals reversed, finding that defense questioning had opened the door and that the prosecutor did not exceed acceptable bounds when correcting the misleading impression created by that questioning (19 N.Y.3d 382, 948 N.Y.S.2d 223, 971 N.E.2d 353 [2012] ). The matter was remitted for this Court to consider the remaining issues we did not resolve when the appeal was previously before us.
County Court's Sandoval ruling was proper. The court reached an appropriate compromise by permitting the People to inquire about defendant's conviction for criminal sale of a controlled substance, which demonstrated his willingness to place his interests above those of society, and to refer to two other convictions only as class E violent felonies ( see People v. Peele, 73 A.D.3d 1219, 1220, 900 N.Y.S.2d 776 [2010],lvs. denied15 N.Y.3d 893, 894, 912 N.Y.S.2d 582, 583, 938 N.E.2d 1017, 1018 [2010] ). Defendant did not argue to the trial court that he would be prejudiced by permitting the People to refer to his prior crimes as “violent” felony offenses, so that argument is unpreserved for our review.
In its Molineux ruling, County Court engaged in the required balancing of probative value against prejudicial effect to defendant ( see People v. Shutter, 72 A.D.3d 1211, 1214, 899 N.Y.S.2d 389 [2010],lv. denied14 N.Y.3d 892, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ). References to defendant's gang membership were highly probative to explain why defendant would brag about the murder to several witnesses and how he came to possess the gun that he used. Facts surrounding the ultimate disposition of the shotgun used by the codefendant were necessary to establish the time frame of when defendant made an admission to one of the witnesses. These and other prejudicial prior bad acts were admitted because of their probative value. Additionally, the court gave limiting instructions to the jury so this evidence would be considered only for appropriate purposes ( see People v. Edmunds, 21 A.D.3d 578, 580, 799 N.Y.S.2d 338 [2005],lv. denied5 N.Y.3d 828, 804 N.Y.S.2d 42, 837 N.E.2d 741 [2005];compare People v. Westerling, 48 A.D.3d 965, 968, 852 N.Y.S.2d 429 [2008] ).
We will not address defendant's allegations of prosecutorial misconduct because he did not preserve them by making proper objections to the prosecutor's questions or comments that defendant now challenges ( see People v. Cortese, 79 A.D.3d 1281, 1283, 913 N.Y.S.2d 383 [2010],lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011] ). Similarly, defendant failed to preserve his allegations that County Court was biased in favor of the People, as he did not object to the court's conduct or move for recusal ( see People v. Busreth, 35 A.D.3d 965, 967, 824 N.Y.S.2d 814 [2006],lv. denied8 N.Y.3d 920, 834 N.Y.S.2d 510, 866 N.E.2d 456 [2007];People v. Lebron, 305 A.D.2d 799, 800, 759 N.Y.S.2d 575 [2003],lv. denied100 N.Y.2d 583, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003] ).
These failures to object did not render counsel's assistance ineffective. Considering the totality of the circumstances, defendant received meaningful representation, as evinced by his concession that counsel was well prepared, made coherent opening and closing statements, effectively examined witnesses and had a reasonable trial strategy ( see People v. Fulwood, 86 A.D.3d 809, 811, 927 N.Y.S.2d 246 [2011],lv. denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027 [2011];People v. Cioto, 80 A.D.3d 875, 876, 914 N.Y.S.2d 771 [2011],lv. denied16 N.Y.3d 829, 921 N.Y.S.2d 193, 946 N.E.2d 181 [2011] ). Defendant now argues that counsel was ineffective by opening the door to harmful testimony, as detailed by the Court of Appeals. This argument could have been—but was not—raised in his initial brief, so we will not review this contention raised for the first time on remittal ( see Matter of Clinton County [Miner], 39 A.D.3d 1015, 1016, 833 N.Y.S.2d 715 [2007];Matter of Deuel v. Dalton, 33 A.D.3d 1158, 1159, 823 N.Y.S.2d 266 [2006] ).
ORDERED that the judgment is affirmed.