People v. Dugger

• Decision Date: 10 February 1997
• Citation: 654 N.Y.S.2d 28,236 A.D.2d 483
• Parties: The PEOPLE, etc., Respondent, v. Levar DUGGER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 28

654 N.Y.S.2d 28

236 A.D.2d 483

The PEOPLE, etc., Respondent, v. Levar DUGGER, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 10, 1997.

Daniel L. Greenberg, New York City, (Philip A. Hohenlohe, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, (Roseann B. MacKechnie, Monique Ferrell, Nancy F. Talcott, and Jacqueline M. Linares, of counsel), for respondent.

Before MILLER, J.P., and SULLIVAN, PIZZUTO and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from two judgments of the Supreme Court, Kings County (Harkavy, J.), both rendered February 14, 1995, convicting him of (1) attempted murder in the second degree, upon his plea of guilty, under Indictment No. 8677/93, and (2) manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, under Indictment No. 5637/94, and imposing sentences.

ORDERED that the judgments are affirmed.

It is well established that evidence of uncharged crimes is inadmissible for the purpose of demonstrating a defendant's propensity to commit the crimes charged (see, People v. Vargas, 88 N.Y.2d 856, 644 N.Y.S.2d 484, 666 N.E.2d 1357; People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808). However, considering the defendant's justification defense and a remark that "you are going to get it just like your brother", his prior uncharged crime was admissible to show intent, to complete the narration, and to provide background information (see, People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153; People v. Vargas, 88 N.Y.2d 856, 644 N.Y.S.2d 484, 666 N.E.2d 1357, supra).

The elements of the charge of criminal possession of a weapon in the second degree (Penal Law § 265.03) were completed prior to the shooting that gave rise to the manslaughter charge. The defendant purchased the loaded weapon approximately one week prior to the shooting, in order to "protect" himself against a rival gang (see, People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463; People v. Bernier, 204 A.D.2d 732, 612 N.Y.S.2d 629; compare, People v. Banks, 208 A.D.2d 759, 617 N.Y.S.2d 796). As such, the manslaughter charge and the criminal possession of a weapon charge involved separate and distinct acts which justified the imposition of consecutive sentences (see, Penal Law § 70.25[2]; People v. Burgess, 221 A.D.2d 354, 633 N.Y.S.2d 515; People v. James, 211 A.D.2d 824, 622 N.Y.S.2d 95).

The...