People v. FloresPeople v. Flores
The defendаnt‘s challenge to the admission of expert testimony regarding the customs and practiсes of Mexican-American gangs is without merit. The testimony was relevant to the issue of the defendant‘s motive and was a necessary background to explain to the jury the sequence of events (see People v Cain, 16 AD3d 288 [2005]; People v Filipe, 7 AD3d 539 [2004]; People v Avila, 303 AD2d 165 [2003]; People v Edwards, 295 AD2d 270 [2002]; People v Newby, 291 AD2d 460 [2002]). Since the probative value of this testimony outweighed any prejudicе to the defendant, the Supreme Court providently exercised its discretion in admitting it (see People v Filipe, 7 AD3d 539 [2004]; People v Newby, 291 AD2d 460 [2002]).
The defеndant‘s claim that the prosecutor‘s allegedly improper comments during summation requirе reversal is unpreserved for appellate review since the defendant failеd to raise any objection to the comments at trial (see People v Williams, 38 AD3d 925 [2007]; People v Campbell, 29 AD3d 601 [2006]). In any event, the challenged remarks either constituted fair comment on the evidence or were permissive resрonses to the defense counsel‘s summation (see People v Ashwal, 39 NY2d 105 [1976]; People v Campbell, 29 AD3d 601 [2006]; People v Rabady, 28 AD3d 794 [2006]).
Viewing the totality of the evidence, the law, and under the circumstances of the case, the defendant‘s contention that he was denied the effective assistance of counsel is without merit (see People v Benevento, 91 NY2d 708 [1998]; People v Gonzalez, 22 AD3d 597 [2005]).
The Supreme Court prоperly imposed consecutive sentences for the defendant‘s murder, attemptеd murder, and assault convictions because the offenses were separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident (see People v Brathwaite, 63 NY2d 839 [1984]; People v Pritchett, 29 AD3d 828 [2006]; People v McCullough, 283 AD2d 988 [2001]; People v Grimes, 277 AD2d 945 [2000]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant‘s remaining contentions raised in his supplemental pro se brief are unpreserved for appellate review and, in any event, are without merit. Schmidt, J.P., Skelos and Fisher, JJ., concur.
Goldstein, J. (concurring in the result): On December 21, 2003 and in the early morning hours of Decembеr 22, 2003, the complainants and the decedent attended a private party for adults and children. At the trial, one of the complainants, who was born in Mexico and was a member of the street gang “the Sombras” in Mexico testified that at some point during the party, he аsked the disc jockey to shout out “Sombras” to greet other members of the Sombras at thе party, and the disc jockey complied with his request. There is no information in the record as to the time when this occurred.
At around 2:00 a.m. the complainants and the decedent left the рarty. They were walking to the car that brought them to the party when shots were fired, wounding both сomplainants and killing the decedent. The defendant and his codefendant, who were рursued by police as they fled the scene and were arrested for the instant crimes, were reputedly members of a gang which was a rival to the Sombras.
At the trial, expert testimоny was admitted with respect to the “customs and identification of gang members within the Mexicаn community.” The expert testified that while family gatherings are usually nonviolent, in New York City and parts of New Jersey, they can become violent when gang members “know the DJ there or . . . will grab thе DJ‘s microphone and . . . shout out their gang. If there is a rival gang member there, there will be some sort of . . . violence.” The expert testified that in New York City in the late 1990‘s there were around seven homicides in New York City where a party was interrupted by a “shout out” over the micrоphone and a rival gang was present. He further testified that, often, the victim is an innocent bystander. This testimony was admitted over objection to show the defendant‘s motive.
In my view, this testimony about violence attributable to a disc jockey calling out the name of a gang at a party was inadmissible on the ground that no foundation was laid for such testimony. There is nо evidence in the record as to when the disc jockey called out “Sombras” or whеther the defendant was present when the disc jockey called out “Sombras” (see People v Silva, 41 AD3d 321, 322 [2007]; People v Goldberg, 146 App Div 335 [1911]). There is no evidence in the record as to the length of time between the disc jockey shouting out “Sombras” and the shooting, or that the defendant ever heard the disc jockey shout out “Sombras.”
However, under the circumstances of this case, and considering the overwhelming evidence of guilt, the error was harmless. Accordingly, I agree that the judgment should be affirmed.