People v. Cruz

• Decision Date: 04 December 2007
• Docket Number: 2004-10715.
• Citation: 2007 NY Slip Op 09599,846 N.Y.S.2d 376,46 A.D.3d 567
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLOS CRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 567

846 N.Y.S.2d 376

2007 NY Slip Op 09599

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLOS CRUZ, Appellant.

2004-10715.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 4, 2007.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered November 22, 2004, convicting him of murder in the second degree, attempted murder in the second degree, assault in the second degree, reckless endangerment in the first degree, and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was tried jointly with his codefendant Antonio Flores. Since the probative value of the expert testimony regarding the customs and practices of Mexican-American gangs, which was relevant to the defendant's motive and provided a necessary background, outweighed any prejudice to the defendant, the Supreme Court providently exercised its discretion in admitting it (see People v Flores, 46 AD3d 570 [2007] [decided herewith]; People v Filipe, 7 AD3d 539 [2004]; People v Newby, 291 AD2d 460 [2002]).

The defendant's contention that he was deprived of a fair trial by the prosecutor's allegedly improper summation comments is unpreserved for appellate review (see People v Williams, 38 AD3d 925 [2007]; People v Campbell, 29 AD3d 601 [2006]). In any event, the defendant's contention is without merit because the comments constituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]; People v Rabady, 28 AD3d 794 [2006]).

The Supreme Court properly imposed consecutive terms of imprisonment for the defendant's murder, attempted murder, and assault convictions (see People v Flores, 46 AD3d 570 [2007] [decided herewith]). The defendant's claim that the procedure by which the Supreme Court determined that he was eligible for consecutive terms of imprisonment violated the principles of Apprendi v New Jersey (530 US 466 [2000]) is unpreserved for appellate review and, in any event, is without merit (see People v Pritchett, 29 AD3d 828 [2006]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant's remaining contention is 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 December 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 asked the disc jockey to shout out "Sombras" to greet other members of the Sombras at the party, and the disc jockey complied with his request. There is no evidence in the record as to the time when this occurred.

The other complainant testified that he saw the defendant, Carlos Cruz, at the party "[d]rinking, smoking" and going "to the bathroom." He did not specify when he saw the defendant.

At around 2:00 A.M. the complainants and the decedent left the party. They were walking to the car that brought them to the party when shots were fired, wounding both complainants and killing the decedent. The defendant and his codefendant Antonio Flores, who were pursued by the 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 testimony was admitted with respect to the "customs and identification of gang members within the Mexican community." The expert testified that while family gatherings are...