People v. Johnson

• Decision Date: 27 March 1995
• Citation: 213 A.D.2d 675,624 N.Y.S.2d 206
• Parties: The PEOPLE, etc., Respondent, v. Michael JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 206

624 N.Y.S.2d 206

213 A.D.2d 675

The PEOPLE, etc., Respondent, v. Michael JOHNSON, Appellant.

Supreme Court, Appellate Division Second Department.

March 27, 1995.

Philip L. Weinstein, New York City (Harold V. Ferguson, Jr., of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseanne MacKechnie, Jay M. Cohen, and Ross Rhodes, of counsel), for respondent.

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered August 10, 1992, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On the evening of March 3, 1991, the defendant fired two shots at the victim, striking her with one bullet which lodged in the back of her skull, causing her death. At trial two eyewitnesses testified that the shooting occurred during the course of a loud argument between the defendant and the victim, and that they observed the defendant shout at the victim and call her a "bitch". The defendant testified, however, that he and the victim were simply walking home from the grocery store when he began "playing" with a gun and accidentally shot her.

On appeal, the defendant contends that he was deprived of a fair trial by the admission of testimony that he put a gun to the victim's head and threatened to kill her on the day before the shooting. We disagree. It is well settled that "where the evidence of prior, uncharged criminal conduct has a bearing upon a material aspect of the People's case other than the accused's general propensity toward criminality * * * the probative value of the evidence justifies its admission, notwithstanding the potential for incidental prejudice" (People v. Santarelli, 49 N.Y.2d 241, 247, 425 N.Y.S.2d 77, 401 N.E.2d 199; see also, People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808). Contrary to the defendant's contention, the evidence that he previously assaulted and threatened the victim was admissible to establish his motive and intent, and to refute his assertion that the shooting was accidental (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286; People v. Hamid, 209 A.D.2d 716, 619 N.Y.S.2d 331; People v. Montana, 192 A.D.2d 623, 596 N.Y.S.2d 154; People v. Vita, 184 A.D.2d 742, 585 N.Y.S.2d 452; People v. Carver, 183 A.D.2d 907, 584 N.Y.S.2d 142). The defendant's further claim that the prosecutor failed to fully reveal the scope of the proposed testimony during the pretrial Ventimiglia hearing (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59) is unpreserved for appellate review because the defendant failed to object on this basis when the testimony was admitted. In...