People v. Devino

• Decision Date: 01 October 1998
• Citation: 688 N.Y.S.2d 114,254 A.D.2d 9
• Parties: , 1998 N.Y. Slip Op. 7990 The PEOPLE of the State of New York, Respondent, v. Raheem DEVINO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 114

688 N.Y.S.2d 114

254 A.D.2d 9, 1998 N.Y. Slip Op. 7990

The PEOPLE of the State of New York, Respondent, v. Raheem DEVINO, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 1, 1998.

Mary C. Farrington, for Respondent.

Greg D. Andres, for Defendant-Appellant.

LERNER, P.J., WALLACH, RUBIN and SAXE, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered June 5, 1996, convicting defendant, after a jury trial, of two counts of murder in the second degree, and sentencing him to consecutive terms of 22 years to life, unanimously affirmed.

Defendant's Dunaway motion was properly denied without a hearing. No factual issue was raised in his moving papers, which were devoid of facts and consisted of conclusory "boilerplate" allegations applicable to any case (see, People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017; People v. Lomax, 50 N.Y.2d 351, 357, 428 N.Y.S.2d 937, 406 N.E.2d 793). Moreover, defendant failed to address the information available to him concerning his arrest (see, People v. Maldonado, 251 A.D.2d 79, 673 N.Y.S.2d 309). We note that defendant was already under arrest in police custody on an unrelated charge at the time he gave a statement pertaining to the crimes at bar, but his motion did not challenge the lawfulness of that arrest.

The trial court properly admitted evidence of the commission of uncharged drug crimes by defendant to provide the jury with a thorough understanding of defendant's relationship with the prosecution witnesses, and more precisely, why defendant would speak freely to those witnesses about having committed the murders (see, People v. Williams, 240 A.D.2d 213, 658 N.Y.S.2d 294, lv. denied 90 N.Y.2d 1015, 666 N.Y.S.2d 110, 688 N.E.2d 1394; People v. Bernard, 224 A.D.2d 192, 193, 637 N.Y.S.2d 692, lv. denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350).

The prosecutor's reference to the victims having received the "death penalty" from defendant, while improper, was not sufficiently prejudicial to warrant reversal. Defendant's remaining challenges to the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review them, we would find them to be largely responsive to defendant's summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724), and that in any event there was no pattern of inflammatory...