People v. Bernard

• Decision Date: 01 February 1996
• Citation: 637 N.Y.S.2d 692,224 A.D.2d 192
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth BERNARD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 692

637 N.Y.S.2d 692

224 A.D.2d 192

The PEOPLE of the State of New York, Respondent, v. Kenneth BERNARD, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 1, 1996.

S. Feldman, for respondent.

R.A. McDonald, for defendant-appellant.

Before SULLIVAN, J.P., and WALLACH, RUBIN and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered March 12, 1992, convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to consecutive terms of 25 years to life, unanimously affirmed.

Defendant's failure to object to the trial court's proposed procedure regarding its Sandoval ruling renders his current claim of error unpreserved (CPL 470.05; People v. Claudio, 64 N.Y.2d 858, 487 N.Y.S.2d 318, 476 N.E.2d 644). In any event, the court's advance ruling that it would permit cross-examination of defendant regarding the prior bad acts outlined by the prosecutor, subject to an in-depth hearing at an appropriate time that could result only in a narrowing of the scope of cross-examination permitted, afforded defendant an appropriate opportunity to consider whether to take the witness stand (People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413).

Defendant's claims of error in connection with the admission of testimony involving his criminal activities as a gang member are for the most part unpreserved by appropriate objection (CPL 470.05; see, People v. Gines, 36 N.Y.2d 932, 933, 373 N.Y.S.2d 543, 335 N.E.2d 850). In any event, such testimony was admissible on the People's direct case, as highly probative of motive (People v. Molineux, 168 N.Y. 264, 61 N.E. 286), inextricably interwoven with the narrative of events (People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320), and necessary background to explain to the jury the unique relationship between defendant and the witnesses who, by virtue of their common membership in the gang, were privy to defendant's activities relevant to the instant crimes (see, People v. Mendez, 165 A.D.2d 751, 564 N.Y.S.2d 241, lv. denied 77 N.Y.2d 880, 568 N.Y.S.2d 923, 571 N.E.2d 93). Any prejudice to defendant from this testimony was far outweighed by its probative value (People v. Boyd, 164 A.D.2d 800, 803, 560 N.Y.S.2d 15, lv. denied 77 N.Y.2d 904, 569 N.Y.S.2d 936, 572 N.E.2d 619). Additionally, police testimony regarding general criminal activities of the gang was properly admissible as relevant to credibility issues before the jury (see, People v. Steinberg, 170 A.D.2d 50, 73, 573 N.Y.S.2d 965, affd. 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845). While the unique circumstances herein necessitated the introduction of a...