People v. Dominguez

• Decision Date: 26 January 1999
• Citation: 685 N.Y.S.2d 14,257 A.D.2d 511
• Parties: 1999 N.Y. Slip Op. 724 The PEOPLE of the State of New York, Respondent, v. Richard DOMINGUEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 14

685 N.Y.S.2d 14

1999 N.Y. Slip Op. 724

The PEOPLE of the State of New York, Respondent, v. Richard DOMINGUEZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 26, 1999.

Deborah L. Morse, for Respondent.

Katheryne M. Martone, for Defendant-Appellant.

Before SULLIVAN, J.P., NARDELLI, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered January 19, 1995, convicting defendant, after a jury trial, of two counts each of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 12 1/2 to 25 years on the attempted murder convictions and concurrent terms of 7 1/2 to 15 years on the remaining convictions, unanimously affirmed. Order, same court and Justice, entered on or about January 22, 1998, which denied defendant's motion to vacate the judgment of conviction, unanimously affirmed.

Defendant did not preserve by specific objection his current claims regarding evidence of photo array and lineup identifications made by a person who did not testify (see, People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313), and we decline to review these claims in the interest of justice. Were we to review these claims, we would find that, in the circumstances presented, the People were properly permitted to introduce police testimony regarding prior identification procedures, since such testimony was not offered for its truth or to identify defendant as the perpetrator of the crime, but rather to explain why the police focused on defendant as a suspect (see, People v. Gonzalez, 249 A.D.2d 24, 670 N.Y.S.2d 852).

Since defendant conceded the propriety of the court's ruling on admissibility of uncharged crimes evidence as relevant to motive, and affirmatively used the evidence in cross-examination, he has waived any claim that the evidence was introduced solely or primarily to demonstrate criminal propensity. We conclude that defendant likewise waived any claim that this evidence included hearsay. Further, since defendant did not object to the court's limiting instructions or request further instructions, he may not now properly claim that the court's instructions were inadequate (see, People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668). In light of the court's in limine rulings, the...