Summary
concluding that the defendant's claim that evidence of "uncharged crimes was improperly admitted" was unpreserved for appellate review where the defendant "failed to object to the testimony in question"
Summary of this case from LORA v. WESTOpinion
November 28, 1995
Appeal from the Supreme Court, New York County (Antonio Brandveen, J.).
Defendant's claim that evidence of uncharged crimes was improperly admitted is unpreserved for appellate review as a matter of law, defendant having failed to object to the testimony in question or otherwise make his position known after the court made no ruling on the prosecution's motion for a prospective ruling with respect to some of such testimony (CPL 470.05; cf., People v Fleming, 70 N.Y.2d 947), and we decline to review it in the interest of justice. If we were to review it, we would find that the evidence that defendant and three companions were observed by police watching and sometimes following passersby, while suspicious, was not proof of a crime ( see, People v Flores, 210 A.D.2d 1, lv denied 84 N.Y.2d 1031). Also unpreserved is defendant's argument that the uncharged crimes evidence was heightened by the prosecutor's summation comment that defendant and his companions "were stalking people, they were walking around and looking for easy targets, somebody to rob", and we decline to review it in the interest of justice. If we were to review it, we would find that the comment, in context, was fair response to the defense summation that challenged the evidence of stalking as suspect on the basis of the argument that the police did nothing to stop it as they believed no crime had as yet been committed.
The victim's testimony concerning the injuries he sustained during the attack was properly elicited to establish the element of force ( see, People v Graham, 182 A.D.2d 521). There was no Rosario violation since the undisclosed prisoner property voucher form did not relate to any testimony elicited by the People ( see, People v Melendez, 178 A.D.2d 366, 367, lv denied 79 N.Y.2d 950).
Concur — Murphy, P.J., Sullivan, Ross, Williams and Tom, JJ.