The People, Respondent,v.Princesam Bailey, Appellant.BriefN.Y.May 2, 2018APL-2017-00140 To be argued by REBECCA HAUSNER (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - PRINCESAM BAILEY, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 HILARY HASSLER REBECCA HAUSNER ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 6, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 STATEMENT OF THE CASE .......................................................................................... 1 THE EVIDENCE AT TRIAL ............................................................................................ 6 The People’s Case ............................................................................................................. 6 The Defense Case ........................................................................................................... 10 The People’s Rebuttal Case ........................................................................................... 13 POINT I DEFENDANT HAS NOT PRESERVED HIS COMPLAINT ABOUT THE COURT’S FAILURE TO CONDUCT A SPECIFIC INQUIRY INTO THE CONTINUING IMPARTIALITY OF A SWORN JUROR. IN ANY EVENT, THE TRIAL COURT’S HANDLING OF THE MATTER WAS PERFECTLY PROPER. ....................................................................................................... 13 A. The Relevant Record ......................................................................... 14 B. Defendant’s Claim Is Unpreserved For This Court’s Review ...... 18 C. Defendant’s Claim That He Was Entitled To A Specific Inquiry Into Juror Six’s Continued Impartiality Is Meritless...................... 25 POINT II THE TRIAL COURT PROPERLY ADMITTED BRIEF BACKGROUND TESTIMONY DESCRIBING THE CULTURE AND CUSTOMS OF THE GANG IN WHICH THE THREE DEFENDANTS WERE MEMBERS. ANY CLAIM THAT THE EVIDENCE EXCEEDED PERMISSIBLE BOUNDS IS UNPRESERVED. ........................................................................................ 39 -ii- A. The Relevant Record ......................................................................... 40 B. Defendant’s Challenge To The Scope of Expert Gang-Related Testimony Admitted At Trial Is Unpreserved and Unavailing. ... 44 CONCLUSION ................................................................................................................... 54 -iii- TABLE OF AUTHORITIES FEDERAL CASES United States v. Hendrix, 52 F.3d 326 (6th Cir. 1995) ......................................................... 51 United States v. Panebianco, 543 F.2d 447 (2d Cir. 1976) .............................................. 27, 29 STATE CASES Mark v. Colgate University, 53 A.D.2d 884 (2d Dept. 1976) ............................................... 34 People v. Alcide, 21 N.Y.3d 687 (2013) ................................................................................. 24 People v. Alvino, 71 N.Y.2d 233 (1987) ................................................................................ 49 People v. Anderson, 149 A.D.3d 1407 (3d Dept. 2017) ....................................................... 23 People v. Astacio, 105 A.D.3d 1394 (4th Dept. 2013) ......................................................... 25 People v. Avila, 303 A.D.2d 165 (1st Dept. 2003) .............................................................. 48 People v. Bailey, 148 A.D.3d 547 (1st Dept. 2017) ....................................................... 3-5, 40 People v. Bakerx, 114 A.D.3d 1244 (4th Dept. 2014) ......................................................... 23 People v. Balls, 69 N.Y.2d 641 (1986) ................................................................................... 51 People v. Benet, 45 A.D.3d 1449 (4th Dept. 2007) ........................................................ 27, 29 People v. Blair, 90 N.Y.2d 1003 (1997) ................................................................................. 45 People v. Borrello, 52 N.Y.2d 952 (1981) ............................................................................... 24 People v. Buckley, 75 N.Y.2d 843 (1990) .......................................................................... 21-23 People v. Buford, 69 N.Y.2d 290 (1987) ............................................................... 26-27, 29-30 People v. Cabassa, 79 N.Y.2d 722 (1992) .............................................................................. 21 People v. Cain, 16 A.D.3d 288 (1st Dept. 2005) .................................................................. 47 People v. Caminero, 193 A.D.2d 547 (1st Dept. 1993) ........................................................ 33 People v. Cosby, 271 A.D.2d 353 (1st Dept. 2000) .............................................................. 32 -iv- People v. Daniels, 218 A.D.2d 589 (1st Dept. 1995)............................................................ 26 People v. Davis, 58 N.Y.2d 1102 (1983) ......................................................................... 33, 50 People v. Dorm, 12 N.Y.3d 16 (2009) .................................................................................... 46 People v. Faccio, 33 A.D.3d 1041 (3d Dept. 2006) .............................................................. 47 People v. Ford, 133 A.D.3d 442 (1st Dept. 2015) ................................................................ 49 People v. Frankline, 27 N.Y.3d 1113 (2016) ......................................................................... 46 People v. Frumusa, 29 N.Y.3d 364 (2017) ............................................................................. 45 People v. Gajadhar, 281 A.D.2d 223 (1st Dept. 2001) ........................................................ 31 People v. Gillis, 213 A.D.2d 422 (2d Dept. 1995) ............................................................... 30 People v. Gillyard, 13 N.Y.3d 351 (2009) .............................................................................. 53 People v. Gray, 86 N.Y.2d 10 (1995) ..................................................................................... 19 People v. Greene, 49 A.D.3d 275 (1st Dept. 2008) ............................................................... 23 People v. Hampton, 21 N.Y.3d 277 (2013) ............................................................................ 23 People v. Harris, 26 N.Y.3d 1 (2015) .................................................................................... 45 People v. Hernandez, 136 A.D.3d 1055 (2d Dept. 2016) ..................................................... 23 People v. Hicks, 6 N.Y.3d 737 (2005) ................................................................................... 20 People v. Hierro, 122 A.D.3d 420 (1st Dept. 2014) ............................................................. 47 People v. Hudy, 73 N.Y.2d 40 (1988) .................................................................................... 45 People v. Hurst, 113 A.D.3d 1119 (4th Dept. 2014) ........................................................... 30 People v. Hutchinson, 56 N.Y.2d 868 (1982) ......................................................................... 44 People v. Jaen, 116 A.D.3d 975 (2d Dept. 2014) ................................................................. 23 People v. Kelly, 5 N.Y.3d 116 (2005) ..................................................................................... 25 People v. Kims, 24 N.Y.3d 422 (2014) ............................................................................. 45, 52 -v- People v. Lane, 7 N.Y.3d 888 (2006) ..................................................................................... 45 People v. Lombardo, 61 N.Y.2d 97 (1984) ........................................................................ 19-20 People v. Major, 143 A.D.3d 1155 (3d Dept. 2016), lv. denied 28 N.Y.3d 1147 (2017) .............................................................................. 26, 29 People v. Maldonado, 279 A.D.2d 406 (1st Dept. 2001) ...................................................... 29 People v. Marshall, 106 A.D.3d 1 (1st Dept. 2013).............................................................. 32 People v. Martin, 50 N.Y.2d 1029 (1980).............................................................................. 24 People v. Matiash, 197 A.D.2d 794 (3d Dept. 1993) ........................................................... 32 People v. McDowell, 47 N.Y.2d 858 (1979) ........................................................................... 49 People v. Mejias, 21 N.Y.3d 73 (2013) ..............................................................................passim People v. Molineux, 168 N.Y. 264 (1901) .........................................................................passim People v. Morales, 36 A.D.3d 631 (2d Dept. 2007) .............................................................. 31 People v. Morris, 21 N.Y.3d 588 (2013) ................................................................................ 46 People v. Murray, 116 A.D.3d 1068 (2d Dept. 2014) .......................................................... 49 People v. Paulino, 131 A.D.3d 65 (1st Dept. 2015) .............................................................. 27 People v. Prado, 4 N.Y.3d 725 (2004) .................................................................................... 23 People v. Rice, 75 N.Y.2d 929 (1990) .................................................................................... 20 People v. Rodriguez, 71 N.Y.2d 214 (1988) ..................................................................... 27, 34 People v. Rojas, 220 A.D.2d 266 (1st Dept. 1995) ......................................................... 27, 29 People v. Rojas, 97 N.Y.2d 32 (2001) ............................................................................... 45-46 People v. Rukaj, 123 A.D.2d 277 (1st Dept. 1986) ............................................................. 34 People v. Sabb, 11 A.D.3d 350 (1st Dept. 2004).................................................................. 44 People v. Samuel, 137 A.D.3d 1691 (4th Dept. 2016) ......................................................... 23 People v. Singleton, 139 A.D.3d 208 (1st Dept. 2016) .......................................................... 50 -vi- People v. Small, 12 N.Y.3d 732 (2009) .................................................................................. 50 People v. Spencer, 29 N.Y.3d 302 (2017) ............................................................................... 35 People v. Tatro, 53 A.D.3d 781 (3d Dept. 2008) ................................................................. 49 People v. Till, 87 N.Y.2d 835 (1995) ............................................................................... 46, 49 People v. Toledo, 101 A.D.3d 571 (1st Dept. 2012) ............................................................. 23 People v. Torres, 80 N.Y.2d 944 (1992) ................................................................................. 25 People v. Valentin, 29 N.Y.3d 150 (2017) ............................................................................. 45 People v. Wiggins, 132 A.D.3d 514 (1st Dept. 2015), lv. denied 27 N.Y.3d 1076 (2016) ................................................................................... 3-5 STATE STATUTES CPL § 270.35 ...................................................................................................... 26, 29, 31, 34 CPL § 310.70 ........................................................................................................................... 3 CPL § 470.05(2) ...............................................................................................................passim N.Y. Constitution, Article VI § 3 ....................................................................................... 19 Penal Law § 110 ...................................................................................................................... 2 Penal Law § 120.05(2), (7) ................................................................................................. 1, 2 Penal Law § 120.07 ................................................................................................................. 2 Penal Law § 120.10(1) ............................................................................................................ 2 Penal Law § 265.02(1) ............................................................................................................ 3 OTHER AUTHORITIES Preiser, Practice Commentary to CPL § 470.05 (McKinney’s 2009), Book 11A ........................................................................................................................ 22 Memorandum, 1986 New York State Legislative Annual, pg. 333 ............................... 23 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- PRINCESAM BAILEY, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Eugene M. Fahey, Associate Judge of this Court, defendant Princesam Bailey appeals from an order of the Appellate Division, First Department, entered on March 21, 2017. That order unanimously affirmed a judgment of the Supreme Court, New York County (Sonberg, J.), rendered on July 30, 2013, convicting defendant, after a jury trial, of Assault in the Second Degree (Penal Law § 120.05[7]). The court sentenced defendant, as a second felony offender, to a determinate prison term of seven years, to be followed by five years of post-release supervision. Defendant is incarcerated pursuant to that judgment. STATEMENT OF THE CASE On October 5, 2011, defendant Princesam Bailey, Reginald Wiggins, and Jonathan Batticks – members of the Bloods gang who were all incarcerated at the -2- Manhattan Detention Complex – attacked fellow inmate Steven Davis. Earlier that day, Wiggins had gotten into an argument with Davis while the two men waited in line to pick up clean linens. After Davis left the line, Wiggins trailed after him and instigated a fight inside Davis’ cell. Moments later, defendant and Batticks, who had not been involved in the earlier dispute, entered Davis’ cell. While Wiggins restrained Davis, defendant and Batticks punched him repeatedly. A short time later, defendant confronted Davis and warned him not to report the attack. When Davis rebuffed defendant’s demand, a second fight ensued. Wiggins and Batticks returned to assist defendant, and the three men punched and kicked an already-injured Davis. Defendant grabbed a wooden cane from an inmate standing nearby and struck Davis in the face with it. Corrections Officer Brian Weise heard the commotion and arrived in time to see defendant wielding the cane and Wiggins and Batticks beating Davis with their hands and feet. After the attack, Davis required stitches to treat a bloody gash to his right eye; he suffered from impaired vision, swelling, abrasions, and a lower back injury resulting in persistent pain. By New York County Indictment Number 5102/2011, filed on October 24, 2011, a grand jury charged defendant, Batticks, and Wiggins with one count each of Attempted Assault in the First Degree (Count One: Penal Law §§ 110/120.10[1]), Attempted Gang Assault in the First Degree (Count Two: Penal Law §§ 110/120.07), and two counts of Assault in the Second Degree (Counts Three and Four: Penal Law §§ 120.05[2] [intent to cause physical injury with a dangerous instrument] and -3- 120.05[7] [causing physical injury to another while confined in a correctional facility]). Defendant was separately charged with Criminal Possession of a Weapon in the Third Degree (Count Five: Penal Law § 265.02[1]). On April 24, 2013, the three men proceeded to a joint jury trial before the Honorable Michael Sonberg. On May 17, 2013, the jury convicted defendant, Batticks, and Wiggins of one count of second- degree assault for causing physical injury to another person while incarcerated.1 On July 30, 2013, the court sentenced defendant as noted above.2 Defendant appealed, and by order and decision dated March 21, 2017, the Appellate Division, First Department, unanimously affirmed the judgment of conviction. People v. Bailey, 148 A.D.3d 547 (1st Dept. 2017) (A2-3).3 Defendant had argued that the trial judge mishandled an incident involving a sworn juror. At trial, while cross-examining the victim, defendant’s counsel repeatedly asked whether co- defendant Wiggins had called the victim an “old nigger.” Following counsel’s fifth invocation of the epithet – and after the victim had acknowledged its use against him 1 The jurors acquitted defendant, Batticks, and Wiggins of counts one and two and were unable to reach a verdict as to counts three and five (A1066-71). Upon consent of the People, the court, pursuant to CPL § 310.70, dismissed those two remaining counts (A1077). 2 On June 10, 2013, the court sentenced Wiggins to a determinate prison term of four and one-half years, plus three years of post-release supervision. Wiggins’ conviction was affirmed on appeal. People v. Wiggins, 132 A.D.3d 514 (1st Dept. 2015), lv. denied 27 N.Y.3d 1076 (2016). On June 12, 2013, the court sentenced Batticks, as a second violent felony offender, to a determinate prison term of six and one-half years, plus five years of post- release supervision. Batticks’ direct appeal is pending. 3 Citations preceded by “A” and “PA” are to the defense appendix and the People’s supplemental appendix, respectively. -4- by Wiggins – a juror asserted from the jury box that she would leave the courtroom if counsel continued to use the “very offensive” term. The trial judge intervened, and following a conference with the parties during which defendant sought only a mistrial, the judge admonished the jurors not to speak from the jury box, cautioned them not to hold the manner of questioning against the parties, and directed them to advise the court if the incident had impaired their ability to continue to serve impartially. None of the jurors reported any such concern, and there was no further incident. In affirming, the Appellate Division concluded that, by seeking only a mistrial in response to the juror’s outburst, defendant had failed to preserve his appellate claim that the judge should have conducted a specific inquiry of the juror. The court looked to its prior affirmance in the appeal by co-defendant Wiggins, who had similarly argued that an inquiry of the juror was required but who, like defendant, had sought “other remedies” at trial without joining in codefendant Batticks’ request for an inquiry. Wiggins, 132 A.D.3d at 514 (PA1). The same logic rendered defendant’s claim unpreserved for appellate review. Bailey, 148 A.D.3d at 547 (A2). As an alternative holding, the Appellate Division rejected defendant’s claim on the merits. The Appellate Division adhered to its reasoning in Wiggins, where it had held that no specific inquiry of the juror was required because the trial judge had determined, based on direct observations, that the juror’s brief reaction “demonstrated that she was bothered by the repeated use” of the racial epithet, “rather than by counsel’s initial line of questioning, in which he was eliciting the -5- relevant language used in a conversation” preceding the jailhouse assault. Wiggins, 132 A.D.3d at 514 (PA2). Beyond that, the Wiggins court noted that the judge had admonished all the jurors not to speak aloud from the jury box and specifically directed them not to hold against the parties any questions asked during witness examinations. Under all the circumstances, including the trial judge’s pointed instructions, it sufficed that the judge directed the jurors to alert the court if they doubted their ability to remain fair and impartial as a result of the incident. Id. In affirming defendant’s conviction, the Appellate Division found “no reason” to depart from its prior holding in Wiggins.4 Bailey, 148 A.D.3d at 547. Finally, the Appellate Division rejected defendant’s unrelated claim that the trial judge had admitted excessive evidence regarding the Bloods, a gang in which defendant and the co-defendants were members. On that issue, the Appellate Division held that the trial judge properly admitted evidence of defendant’s membership in the Bloods gang and testimony from an expert witness about the “customs, hierarchies, and violent practices” of the gang. Bailey, 148 A.D.3d at 548 (A2-3). In particular, the court reasoned that the “level of detail” elicited by the prosecutor was “highly probative of defendant’s motive” and was key to understanding his relationship with his co-defendants and why he would participate in “an otherwise unexplained assault.” Id. 4 Wiggins sought leave to appeal to this Court exclusively on the juror issue. That application was denied. Wiggins, 27 N.Y.3d at 1076 (J. Abdus-Salaam, May 19, 2016). -6- On appeal to this Court, defendant reprises his claim that the sworn juror’s courtroom conduct necessitated an inquiry by the trial judge. Additionally, although defendant now appears to acknowledge that the trial judge acted properly in admitting evidence of defendant’s affiliation with the Bloods gang, he argues that the extent of background testimony about the gang’s practices exceeded permissible limits. THE EVIDENCE AT TRIAL The People’s Case On October 5, 2011, 42-year-old STEVEN DAVIS was an inmate at the Manhattan Detention Complex (MDC), located at 125 White Street in Manhattan. Davis lived in “Seven South,” a three-tiered housing unit with cell blocks on the lower and upper tiers, and a shared “day room” on the middle tier. Corrections Officer BRIAN WEISE was assigned to patrol Seven South and monitor the 46 inmates living in the housing area (Weise: A310-11; Davis: A415, 422, 481). At approximately 10:00 a.m., Davis got in line to pick up clean bedding for his cell.5 Davis was standing near the front of the linen-exchange line when two younger inmates attempted to cut in front of him. Davis told them to “get out of the way” and stand at the back of the line (Davis: A426, 429). Reginald Wiggins, another inmate, called Davis an “old nigger,” yelled that he was tired of “you old cats,” and 5 Davis was awaiting trial in a case where he ultimately pled guilty to a B misdemeanor charge of Attempted Assault in the Third Degree. Prior to that, Davis had been convicted of seven specified felonies and four specified misdemeanors (Davis: A417- 421, 488-492, 526-532, 536-540, 584). -7- threatened to “fuck [Davis] up.” After Davis said there was no “need for any of that” and accused Wiggins of having a “mouth,” Davis picked up his linens and returned to his cell on the lower tier of the housing unit (Davis: A428-32, 506, 545-46, 550). Five minutes later, Wiggins appeared at Davis’ cell with his fists clenched and said, “[L]et’s go.” Wiggins started swinging his fists at Davis; Davis “defended himself” and landed several hits on Wiggins. Wiggins started to walk away, but then turned around and said, “[L]et’s go, let’s go, one more round.” Davis did not want to continue fighting, but Wiggins grabbed Davis around the torso, constraining his arms, and tackled him onto the bed inside the cell (Davis: A432-36, 553). At that point, defendant and fellow inmate Jonathan Batticks entered Davis’ cell. While Wiggins held Davis down, defendant and Batticks each punched Davis in the face “four or five” times (Davis: A436-41, 556). When Davis asked if he could get a “fair fight,” meaning a one-on-one fight, Batticks responded that “ain’t nothing fair, only Blood rules” (Davis: A444-45).6 Davis’ cell door began to close automatically 6 On a prior occasion, Davis had asked defendant permission to use one of the communal phones provided to the inmates, but defendant responded that the phone was for “Bloods” only (Davis: A442-43). Defendant and Wiggins also sat at the “Blood table” in the day room, and Batticks had made references to his “Blood homies” in front of other inmates. Davis had seen members of the Bloods interact with each other using “handshake[s]” (Davis: A467-68). At trial, the parties stipulated to defendant’s admission that he was a member of the Bloods gang (A414; People’s Ex. 39 [stipulation]). After the assault, in February 2012, Wiggins “dropped his flag,” meaning that he ended his affiliation with the Bloods gang (Corrections Officer EDWIN SLOWLY: A411-12). -8- according to the hourly “lock-in” schedule, and defendant, Batticks, and Wiggins ran out before it shut (Davis: A444-46, A559-60). While locked in his cell, Davis washed and treated his bruised face. Thirty minutes later, the cell doors in the housing unit automatically unlocked for scheduled free time. Davis left his cell and called out, “[T]hat’s crazy, I couldn’t get a fair fight” (Davis: A446-48). Batticks, who was standing on the upper tier, shouted, “[A]in’t nothing fair.” He also yelled “power rule,” a reference to a specific “set,” or grouping of Bloods members within the gang (Davis: A448, 451, 606). Davis walked away from his cell hoping to locate a corrections officer, but defendant intercepted Davis and told him to “keep quiet” about the attack. Davis responded, “[G]et the fuck out,” and the two men started “throwing blows” at each other (Davis: A434, 452-53, 516, 564-65). Defendant called out, “[Y]o, yo, come down and help me,” and Wiggins and Batticks ran down the stairs from the upper tier to rejoin the fray. Davis fell to the ground, and the three other men began kicking him in the head and back (Davis: A449, 454-57, 519, 566). Corrections Officer Weise heard noise coming from the area around Davis’ cell and ran towards the commotion, ordering the inmates to “break it up” (Weise: A318, 322, 369-70; Davis: A455). Davis was on the ground attempting to shield himself while Batticks and Wiggins continued to punch and kick him (Weise: A320-26; Davis: A455, 581). Weise again yelled for the men to stop hitting Davis and, as Batticks and Wiggins backed away, defendant grabbed a wooden cane from another inmate and -9- struck Davis twice in the face with it (Weise: A321-34, 341, 351; Davis: A455-58, 577- 79; People’s Ex. 1 [cane]). Weise ordered all inmates to return to their cells for “lock- in,” and defendant, Batticks, and Wiggins ran away from the scene (Weise: A319, 327- 28, 344-45; Davis: A456, 459-60). Davis was taken to the medical clinic to treat his injuries, while defendant, Batticks, and Wiggins were moved to the jail’s intake area (Weise: A329-31; Davis: A461-62). Department of Corrections Investigator RICHARD RODRIGUEZ and Corrections Officer ADORACION SANTIAGO escorted Davis to the intake area, where he identified defendant, Batticks, and Wiggins as his attackers (Rodriguez: A100-04; Davis: A462-63). The three assailants did not require any medical attention, but defendant and Wiggins each had cuts on their right hands (Santiago: A233-37; People’s Exs. 17-18, 20, 25-29 [10/5/11 photographs of defendant, Wiggins, and Batticks]). Davis spoke to Rodriguez and reported that he had been hit with a cane during the assault. Rodriguez went to the housing area to retrieve the wooden cane that defendant wielded during the attack and observed blood “spatters” on Davis’ cell wall (Rodriguez: A112-14, 117, 133-35). Officers transported Davis to Rikers Island Urgent Care, and then to Bellevue Hospital, where he was treated for multiple injuries. Davis required stitches to treat a laceration to his right eye, which was swollen shut, and he suffered from blurry vision. Other injuries included significant swelling to his lips and nose, “blunt trauma” to his lower back, a loose tooth, and various cuts and bruises on his face. Davis’ “whole -10- face was numb”; he was prescribed antibiotics and pain medication. Days later, Davis continued to suffer from blurred vision and “constant pain” in his back (Rodriguez: A100, 104; Santiago: A228, 238-43; Doctor LANDIS BARNES: A268-69, 272-74, 284, 289; Davis: A464, 475-80; People’s Exs. 30-34 [10/5/11 photographs of Davis’ injuries]; People’s Exs. 35-36 [10/6/11 photographs of Davis’ injuries]).7 At trial, Investigator Rodriguez testified that members of the Bloods gang were housed within MDC and had been “identified” by the Department of Corrections through interviews and by the gang members’ distinctive red and black clothing, burn marks, and hand signs. Inmates affiliated with the Bloods often “congregate[d]” together in the day room of the housing unit (Rodriguez: A149-51). The gang was organized into smaller groupings of members called “sets,” and each member occupied a particular rank within the gang’s hierarchal structure. Bloods members could “move up” within the organization by committing acts of violence, including “beat[ing]” or “cut[ting]” an inmate targeted by the gang. Similarly, members could be “demoted” by failing to follow orders (Rodriguez: A152-53). The Defense Case In October 2011, defendant PRINCESAM BAILEY was incarcerated at MDC for a parole violation, and was assigned to a cell on the upper tier of the Seven South 7 At the time of trial, Davis had a pending civil lawsuit against the Department of Corrections seeking compensation for his injuries (Davis: A485, 497-98). -11- housing area.8 Defendant’s cell was adjacent to that of inmate Jonathan Batticks, and the two men played chess together on a few occasions (Defendant: A719-23, 799). Although defendant was affiliated with the Bloods gang at the time of the incident with Davis, he was not “engag[ing]” in any gang activity because he was just “passing through” MDC as an “inactive” member (Defendant: A716-17, 726-30). Familiarity with other Bloods members while incarcerated could be an “asset” because members might do “favors” for each other. Fellow inmate Reginald Wiggins “wasn’t Blood,” and defendant did not “recall” any other Bloods members who were housed in Seven South. Defendant denied that “power rule” was a “set” in the gang (Defendant: A717, 726-28, 734, 739-40). On October 5, 2011, inmates Wiggins and TERIQUE COLLINS were waiting in the linen exchange line.9 Steven Davis cut in front of Wiggins, who had been standing at the head of the line. When Wiggins protested, Davis called him a “young punk” and told him to “[s]hut the fuck up” and “take your young ass to the back of the line” (Defendant: A685-86, 690-91; Collins: A867-68, 891-92). Wiggins “put his hands up in a surrendering gesture” and walked to the back of the line (Defendant: 8 Defendant had previously been convicted for three specified felonies, including criminal possession of a weapon, and 11 misdemeanors (Defendant: A674-77, A763-64). 9 Collins, who was housed on the lower tier of Seven South, had previously been convicted of three felonies and four misdemeanors, including multiple convictions for weapons possession and sale of controlled substances (Collins: A864-65, 910-12). -12- A687, 691-92). Collins brought his linens back to his cell and then sat down to play chess in the day room (Collins: A868-69). Shortly thereafter, defendant went to Davis’ cell and told him to stop “boast[ing]” about how much time he had spent in jail and “intimidat[ing]” people (Defendant: A693-94, 808-11). Davis challenged defendant to fight inside his cell, and they punched each other, causing a “commotion” (Defendant: A695-96, 760; Collins: A869-71, 895). After defendant knocked Davis down “a few times,” Davis pulled out a “shiny,” “metal-like” object and swung it in defendant’s direction (Defendant: A697-701, 812-814; Collins: A871-72). Defendant retreated and then “snatched” a cane from Collins, who was standing nearby, and struck Davis with it (Defendant: A698-706; Collins: A871-72). After seeing nothing in Davis’ hands, defendant dropped the cane, jumped on top of Davis and continued hitting him to keep him on the ground (Defendant: A702-06, 770). An officer broke up the fight and told the inmates to “lock in[to]” their cells (Defendant: A706, 773; Collins: A903- 04). Defendant suffered minor scratches on his hands (Defendant: A716). About 20 minutes later, officers retrieved defendant from his cell and brought him to intake, where he saw Wiggins and Batticks (Defendant: A708, 780, 818-19). Neither Wiggins nor Batticks had been present during the fight with Davis. Defendant had last seen Wiggins walking towards his cell after linen exchange, and, as a “courtesy” to Batticks, defendant had closed the door to Batticks’ cell prior to linen exchange, automatically locking him inside (Defendant: A681-82, 692, 706, 708, 745, -13- 750-754; Batticks: A836-38). However, Collins recalled seeing both Batticks and Wiggins on the linen exchange line (Collins: A893-94). The People’s Rebuttal Case On October 5th, 2011, Department of Corrections Investigator RICHARD RODRIGUEZ spoke with Terique Collins about the attack on Steven Davis. Collins described how defendant took Collins’ cane in order to strike Davis, but Collins refused to make a written statement because, as Collins put it, “they’re Bloods” and he was “afraid of them” (Rodriguez: A222). POINT I DEFENDANT HAS NOT PRESERVED HIS COMPLAINT ABOUT THE COURT’S FAILURE TO CONDUCT A SPECIFIC INQUIRY INTO THE CONTINUING IMPARTIALITY OF A SWORN JUROR. IN ANY EVENT, THE TRIAL COURT’S HANDLING OF THE MATTER WAS PERFECTLY PROPER (Answering Defendant’s Brief [“DB”], Point I). On appeal, defendant contends that the trial court erred in failing to conduct a specific inquiry of a sworn juror who, during cross-examination of Steven Davis, reacted to defense counsel’s repeated references to a racial epithet (DB: 25-33). As we now demonstrate, defendant’s complaint does not present a question of law for this Court’s review, because defendant sought only a mistrial in response to the juror’s conduct and never joined in co-defendant Jonathan Batticks’ belated request for an inquiry. In any event, as the Appellate Division unanimously held, Justice Sonberg, -14- who was present for the entire episode, properly exercised his discretion in admonishing the jurors not to speak aloud from the jury box, delivering a curative instruction that they should not hold the manner of questioning against the parties, and directing the jurors to alert the court if they believed they could not be fair and impartial for any reason. A. The Relevant Record During cross-examination of Davis, defendant’s counsel, Glenn Hardy, explored whether co-defendant Wiggins had called Davis an “old nigger” while waiting in line for linens. Davis testified, “Old nigger? I don’t believe he called me an old nigger. But once again, they’re words.” Hardy continued, “They’re words. So [Wiggins] is on the stairwell in front of everybody, about 46 other inmates, calling you an old nigger?” Before Davis could answer, the court corrected the record to reflect that no testimony had established the total number of inmates present at the time (Davis: A544-45). Several question later, Hardy returned to the racial epithet: HARDY: And Wiggins is calling you an old nigger. Right? DAVIS: I don’t recall saying he ---him calling me an old nigger. He called me an old something or other. HARDY: You gave a statement to Officer Santiago? DAVIS: I don’t recall. If he said old nigger, if he said old dude or old guy, yes, he referred to me as an old person. HARDY: You told Officer Santiago that he called you an older nigger? DAVIS: Okay. He may have. -15- (Davis: A545-46). When Hardy revisited the epithet, asking, “And he’s calling you an old nigger?,” the following occurred: JUROR SIX: Please, I am not going to sit here--- COURT: Ma’am. JUROR SIX: -- and having you say that again. Don’t say it again or I am leaving. COURT: Ma’am, ma’am. JUROR SIX: I find that very offensive. COURT: Ma’am, that’s not appropriate from you. But, Mr. Hardy, we’ve been here a half dozen times. HARDY: Judge – COURT: I don’t want to hear it again. Okay. You don’t ask the same question over and over and over again. Move on. HARDY: Judge, I am trying to set the scene. COURT: Mr. Hardy, the scene is set. Move on. That’s the direction (A550). Hardy asked Davis three additional questions before the court announced a brief recess. After the jury had left the courtroom, the court asked whether anyone wanted to address “the outburst from Juror Number Six.” Hardy immediately sought a mistrial, arguing that the juror’s “outburst” demonstrated her animosity towards him and that it “may be carried over” to his client, defendant. He claimed that the juror -16- was grossly unqualified and added that she may have “poisoned” the other jurors as well (A84-86). For his part, co-defendant Wiggins’ counsel argued that Juror Six should be discharged as grossly unqualified. He contended that “perhaps [the juror] is unable to be fair and impartial having such a visceral response” to “the proper scope of [Hardy’s] cross-examination.” Counsel for co-defendant Batticks also asked that the juror be removed (A86-88). The court observed that, although it was proper for Hardy to elicit the fact that Wiggins used the epithet, Davis had already “acknowledged” that the term was used against him. The “issue,” according to the court, was that Hardy used the epithet “repeatedly,” and the juror reacted to the manner in which the phrase was said “over and over again.” The prosecutor agreed with the court’s assessment that Juror Six was not objecting to the line of questioning, but instead was bothered by the repeated use of the word “nigger.” The prosecutor argued that a mistrial was not warranted since there was no reason to believe that the jury was “poisoned.” Nonetheless, she noted that if the court was inclined to substitute an alternate for Juror Six, she would not object (A86-88). The court denied defendant’s request for a mistrial, as well as the request by Wiggins and Batticks to remove Juror Six, finding that the juror was not grossly unqualified to continue serving. The court again noted that Hardy’s use of the epithet was “getting repetitive” and, thus, although the juror’s reaction was not appropriate, -17- the court could “understand someone being offended by [the word’s] repeated use,” particularly after Davis acknowledged that Wiggins had used the term (A88-90). The court resolved to proceed as follows: What I am going to do is instruct the jury that it’s improper for them to say anything, to speak from the jury box, or to deliberate about the case until it’s submitted to them. That they are not . . . to hold it against either one or more of the defendants, or the People, if they dislike or disapprove of questions that are asked, or objections that are made. And that if any of them think that they cannot be fair and impartial as a result of anything which has occurred during the trial, they should advise a court officer, who will advise me (A88-A89). None of the parties objected or requested a modification when the court asked if anyone wished to be heard on the proposed charge. Hardy commented only that the phrase might “come up” in summation (A88-89). The court added that if Juror Six indicated that she could not be fair and impartial because of Hardy’s repeated use of the epithet, then she would be discharged (A90). Justice Sonberg pointed to People v. Mejias, 21 N.Y.3d 73 (2013) and said that “unless it’s clear on its face that a juror is grossly disqualified, there is no need to question the individual juror,” let alone to remove her. He opined, the juror’s statement “on its face,” did not “indicate[ ]” that she could not be “fair and impartial”; rather it showed “only that she found the repeated use of the phrase distasteful.” At that point, Batticks’ attorney requested for the court to “specifically ask [the juror].” Neither defendant nor Wiggins joined in that application. Justice -18- Sonberg denied that request and added that he would not conduct a specific inquiry unless the juror’s conduct “would be grounds for removal in and of itself” (A91). Co-defendant Wiggins’ counsel then confirmed that Justice Sonberg planned to instruct the jurors that “if they feel they can’t be fair and impartial, they should bring that to the attention of the court officer” (A91). When the jurors returned, the court addressed them as follows: It’s not appropriate for jurors to speak from the jury box…. You are also not to hold it against either one or more of the defendants or the People if you dislike or disapprove of questions that are asked or objections that are made. That being said, if any of you think that you can’t be fair and impartial as a result of something that has happened during the trial, you should please let one of the court officers know that and they’ll talk to me about it. Otherwise, I’ll assume that all of you still believe that you can be fair and impartial (A92). None of the jurors conveyed any concern about his or her continued impartiality. B. Defendant’s Claim Is Unpreserved For This Court’s Review On appeal, defendant claims that the trial court’s failure to conduct a specific inquiry of Juror Six entitles him to a reversal of his conviction and a new trial. At the outset, however, defendant’s complaint is beyond the review powers of this Court. As the Appellate Division correctly concluded, defendant failed to seek the relief he now claims was required and chose not to join in his co-defendant’s request for an inquiry. Accordingly, defendant has not preserved a question of law for appellate review. -19- As a general rule, this Court is empowered to review only properly preserved “questions of law.” See N.Y. Const., art. VI, 3(a); CPL § 470.05(2); People v. Gray, 86 N.Y.2d 10, 20-21 (1995). A claim is preserved for review when the party claiming error presented his specific argument to the court that made the supposedly erroneous ruling. Gray, 86 N.Y.2d at 19 (“preservation requirement compels that the argument be specifically directed at the alleged error”) (internal quotations and citation omitted). Moreover, the duty to preserve an issue for appellate review extends to the remedy sought: a defendant who requests a specific form of relief in response to a purported error fails to preserve a claim that he was entitled to some other form of relief. See People v. Lombardo, 61 N.Y.2d 97, 104 (1984) (appellate complaint not preserved for review due to “counsel’s failure, at the time, to request such relief”). At trial, defendant’s unwavering position in response to the juror’s outburst was that it warranted a mistrial. When the court invited the attorneys to discuss how to address Juror Six’s conduct, defendant’s counsel, Hardy, levied a request for a mistrial because, in his view, the juror was grossly unqualified and her outburst had “poisoned the jury” (A84-86). Defendant never sought any alternative form of relief, let alone a specific inquiry of the juror, even after the court denied his motion (A88).10 10 Defendant never asked the trial judge to discharge the juror (contra DB: 39-40). To be sure, in moving for a mistrial, defendant characterized the juror as grossly unqualified, but only co-defendants Batticks and Wiggins proposed discharging the juror (A86-87). The court (Continued…) -20- Because defendant remained steadfast in his request for the most drastic remedy of a mistrial without making a request for an intermediate form of relief, he did not preserve the issue he now presses on appeal. Indeed, this Court’s decision in Lombardo proves the point. In Lombardo, the defendant moved for a mistrial after a sworn juror sent a note to the trial judge doubting whether he could render an impartial verdict. 61 N.Y.2d at 104. The Court ruled that the mistrial motion failed to preserve the claim that the judge should have individually questioned the juror because the defendant never requested that relief and did not join in the prosecutor’s suggestion to conduct an inquiry. Id.; see also People v. Hicks, 6 N.Y.3d 737, 739 (2005) (claim that the court failed to conduct a probing inquiry into a juror’s qualification to continue to serve was not preserved for review where the defendant never protested the “scope or intensity” of the inquiry conducted); People v. Rice, 75 N.Y.2d 929, 932 (1990) (court did not err in denying the defendant’s request for an immediate mistrial where that was the only remedy “demanded”). Accordingly, as the Appellate Division properly determined, defendant failed to preserve his appellate complaint that the trial court should have conducted a specific inquiry of the juror. ______________________ (…Continued) considered the co-defendants’ application “in the alternative” to defendant’s request for a mistrial and separately denied the co-defendants’ request (A86, 88). -21- Defendant strains to convince the Court that he did preserve a question of law for review. First, defendant takes the position that because co-defendant Batticks suggested that the trial judge ask the juror whether she could remain impartial, the judge preserved the issue by “expressly deciding no inquiry was required” (DB: 41). In support of that position, defendant relies on language in CPL § 470.05(2), which provides that a claim may be preserved “if in response to a protest by a party, the court expressly decided the question raised on appeal.” But defendant misunderstands the law on preservation and the meaning of the isolated provision he cites. To be sure, after the court denied both defendant’s demand for a mistrial and his co-defendants’ request to discharge the juror and plotted a course the court deemed appropriate, co-defendant Batticks raised the possibility that the court ask the juror directly about her continued impartiality. Defendant did not join in that belated request for an inquiry, a failure that is fatal to his preservation argument. This Court has long-recognized that an objection lodged by a co-defendant does not preserve an issue of law for defendant unless defendant specifically joins in that request. As the Court observed in People v. Buckley, 75 N.Y.2d 843, 846 (1990), “[f]or tactical reasons codefendants might take different positions on the desirability of various instructions to the jury . . . ” and, accordingly, each defendant is required to join in a co- defendant’s protest of error or request for a remedy if he means to preserve an issue of law for his appeal. See also People v. Cabassa, 79 N.Y.2d 722, 730 (1992). -22- Indeed, this case neatly illustrates the reason for such a rule. As single-minded counsel for defendant, counsel argued that the only remedy that would suffice was a mistrial. He did not join in co-defendant Batticks’ belated request for an inquiry, perhaps because, as a matter of strategy, he did not wish to run the risk that Juror Six would respond to an inquiry by saying exactly what was already apparent: that she was offended by the repeated use of the word “nigger” but that it would not affect her ability to continue to serve impartially. In short, defendant’s failure to join in his co- defendant’s half-hearted request for an inquiry places the issue beyond the reach of this Court. Nor does the language of CPL § 470.05(2) require a different result. As the Practice Commentary to the statute indicates, the provision expanding the preservation rule to include scenarios where a court expressly decides an issue in response to a party’s protest simply “eliminated the need for a nexus between the ground of the protest and the rationale for the ruling.” Preiser, Practice Commentary to CPL § 470.05 (McKinney’s 2009), Book 11A, at 10-11. The cases cited in the Practice Commentary make plain that the provision does not excuse a defendant from individually lodging a specific protest or requesting a particular form of relief on his own behalf. Id.11 Indeed, this Court specifically held in Buckley that the rule requiring 11 In a memorandum pertaining to the original legislation, Senator Ronald B. Stafford wrote that the statutory language was designed to relax the preservation requirements in situations where, during “the heat of trial,” an attorney makes “general objections” or (Continued…) -23- a defendant to join in a co-defendant’s protest in order to preserve an issue of law was not altered by the CPL provision. 75 N.Y.2d at 846. Notably, intermediate appellate courts of every department have uniformly held that a co-defendant’s protest alone does not suffice to preserve a claim on behalf of defendant himself. See, e.g., People v. Toledo, 101 A.D.3d 571 (1st Dept. 2012); People v. Greene, 49 A.D.3d 275, 275 (1st Dept. 2008); People v. Hernandez, 136 A.D.3d 1055, 1056 (2d Dept. 2016); People v. Jaen, 116 A.D.3d 975, 975 (2d Dept. 2014); People v. Anderson, 149 A.D.3d 1407, 1413 (3d Dept. 2017); People v. Samuel, 137 A.D.3d 1691, 1694-95 (4th Dept. 2016); People v. Bakerx, 114 A.D.3d 1244, 1246 (4th Dept. 2014). Still, defendant counters that, by characterizing the juror as “grossly unqualified” in his application for a mistrial, he put the judge on notice that he was requesting an inquiry (DB: 40-42). But that argument also reveals a fundamental misunderstanding of trial practice and the reasons underlying the rules of ______________________ (…Continued) “technically incorrect objections,” but, in response, the trial court makes an express determination on the question of law raised on appeal. See New York State Legislative Annual, 1986 at 333. As noted in the Practice Commentary, the decision in People v. Prado, 4 N.Y.3d 725 (2004), illustrates the narrow class of cases where a question is preserved in this manner. In Prado, the defendant claimed on appeal that the evidence against him was legally insufficient because his confession was uncorroborated. The Court found the defendant’s claim preserved for review despite the fact that defendant made only a general motion for a trial order of dismissal, because the trial judge, in denying the motion, made specific findings relating to corroboration. Id. at 726; see also People v. Hampton, 21 N.Y.3d 277, 284 n.2 (2013) (where the defendant raised a different basis for his claim on appeal than at trial, the issue was nonetheless preserved because the trial court expressly decided the claim raised on appeal in response to defendant’s own objection). -24- preservation. The preservation requirement is designed to ensure that a party draws the court’s attention to the exact nature of the complaint so that the appropriate remedial steps may be taken. People v. Martin, 50 N.Y.2d 1029, 1031 (1980). It does not unduly burden the party voicing an objection to require him to state the grounds in support of it and to identify the remedy that he seeks. See People v. Borrello, 52 N.Y.2d 952, 953 (1981) (claim that court should have charged jury on lesser included offense was unpreserved where defense counsel had “alluded to [that] point” during a colloquy, but “never requested the charge”). Defendant, apparently, would have preferred the court to ignore his explicit request for a mistrial in favor of assuming that a single phrase – grossly unqualified – meant that he was in fact seeking a different form of relief.12 Suffice it to say, the rules of preservation require more. In a last-ditch effort to sidestep the preservation requirement, defendant asserts that the court committed a mode-of-proceedings error by declining to conduct an inquiry of Juror Six (DB: 43). However, this Court has squarely held that an inquiry into a juror’s continuing impartiality, and any resulting dismissal of an unqualified juror, is a “procedural protection” subject to the ordinary rules of preservation. See, 12 Notwithstanding defendant’s insistence to the contrary (DB: 41), there is no reason to assume that it would have been pointless for defendant to join in his co-defendant’s request for an inquiry and explain why that remedy was an acceptable alternative to the mistrial he initially sought. See People v. Alcide, 21 N.Y.3d 687, 695 (2013) (a defendant cannot know that an unarticulated objection would have been “futile”). The preservation rule does not allow for defendant to forego joining his co-defendant’s request for a lesser remedy and then to argue on appeal that the court’s failure to accede to that request requires reversal. -25- e.g., People v. Kelly, 5 N.Y.3d 116, 120 n.2 (2005) (court’s failure to excuse a sworn juror as grossly unqualified does not relieve the defendant of the obligation to protest); People v. Torres, 80 N.Y.2d 944, 945 (1992) (claim that a disqualification hearing was inadequate must be preserved); People v. Astacio, 105 A.D.3d 1394 (4th Dept. 2013) (court’s alleged error in failing to discharge a sworn juror did not constitute a mode- of-proceedings error exempted from preservation requirements). In sum, having failed to properly preserve his claim that the trial court was obligated to inquire into Juror Six’s continuing impartiality, defendant has not presented a question of law for this Court’s review. C. Defendant’s Claim That He Was Entitled To A Specific Inquiry Into Juror Six’s Continued Impartiality Is Meritless Putting aside the lack of preservation, the trial court correctly retained Juror Six without conducting a needless inquiry into her state of mind. The juror’s reaction to defendant’s attorney’s gratuitous use of a racial epithet was nothing more than an expression of exasperation at the unnecessary repetition of the offensive term. In recognition of that circumstance, the trial judge appropriately exercised his discretion by admonishing the jurors collectively not to speak from the jury box or hold any questions asked against the parties, and by directing the jurors to come forward if they harbored any concerns regarding their continued impartiality. That was a proper exercise of the trial court’s discretion that provides no grounds for a new trial. -26- A sworn juror must be discharged if he “engage[s] in misconduct of a substantial nature” during trial, or if he otherwise becomes “grossly unqualified” to serve on the case based on facts unknown at the time of jury selection. CPL § 270.35(1). In People v. Buford, 69 N.Y.2d 290 (1987), this Court created a framework for trial courts to question jurors, midtrial, to evaluate whether they “possess[ ] a state of mind which would prevent the rendering of an impartial verdict.” Id. at 298-99 (citation and internal quotation omitted). To determine gross disqualification, the court should conduct a “probing and tactful inquiry,” in order to “evaluate the nature of what the juror has seen, heard, or has acquired knowledge of” and “its bearing on the case.” Id. As a general matter, a trial court should be “circumspect” about removing a seated juror. People v. Daniels, 218 A.D.2d 589, 591 (1st Dept. 1995). That is because discharge typically requires serious disqualifying conduct, like “a juror’s bias against a particular race”; “a juror’s intimate relationship with a prosecution witness”; “or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background.” Mejias, 21 N.Y.3d at 79. By contrast, a juror “should not be discharged merely because she is irritated with one of the attorneys or disagrees with the way the evidence is presented.” Buford, 69 N.Y.2d at 298. In the ordinary course, juror irritation does not even warrant a specific inquiry of the affected juror. See, e.g., People v. Major, 143 A.D.3d 1155, 1156 (3d Dept. 2016), lv. denied 28 N.Y.3d 1147 (2017) (no discharge or specific inquiry -27- where jurors wrote note expressing irritation with mannerisms and behavior of defense counsel); People v. Benet, 45 A.D.3d 1449, 1451 (4th Dept. 2007) (same, where a juror audibly sighed when defense counsel made motion for mistrial); People v. Rojas, 220 A.D.2d 266 (1st Dept. 1995) (same, where a juror “verbally responded to rhetorical questions presented by the prosecutor in his summation” because nothing indicated that the juror’s behavior was indicative of bias or affected other jurors); United States v. Panebianco, 543 F.2d 447, 456-57 (2d Cir. 1976) (court’s repetition of a “cautionary instruction” was a “wiser course” than an inquiry after sworn jurors exhibited exasperation and “impatience” with counsel). As this Court has confirmed, a specific inquiry is only necessary when there is “some indication that” a particular juror lacks impartiality or has “engaged in some disqualifying conduct.” Mejias, 21 N.Y.3d at 79-80. Simply put, a mere allegation of misconduct or supposed bias is insufficient to trigger the need for an inquiry, and because possible indicators of impartiality can take many forms, each case must be evaluated on its “own unique facts.” Mejias, 21 N.Y.3d at 79 (quoting Buford, 69 N.Y.2d at 299); see also People v. Paulino, 131 A.D.3d 65, 72 (1st Dept. 2015). Moreover, the trial court, which is in the best position to evaluate a juror’s ability to serve, is accorded wide “latitude in making the findings necessary,” and its determinations of credibility and fact are entitled to deference. See People v. Rodriguez, 71 N.Y.2d 214, 219 (1988). -28- In light of these standards, Justice Sonberg responded appropriately to the understandable reaction of Juror Six. To begin, the record reveals that Glenn Hardy, defendant’s attorney, attempted to provoke Steven Davis by repeatedly asking him whether co-defendant Wiggins referred to him as an “old nigger.” Counsel had plainly calculated that an emotional reaction from Davis on the witness stand would bolster defendant’s ultimate argument that Davis instigated the violence and defendant acted in self-defense (see A947-48, 953-59). The manner in which the questioning unfolded proved the point: Hardy confronted Davis with the racial epithet four successive times. Indeed, defendant’s counsel returned to the epithet unnecessarily a fifth time, even after Davis had openly acknowledged that Wiggins had used the epithet against Davis. Of course, Hardy’s strategy did not pan out. Davis remained calm under fire, but Juror Six, jarred by the repetitive use of the racial slur, blurted out that she did not want to hear the term “again” and that she would “leave” the courtroom if the pattern continued (A81). Justice Sonberg immediately took control of the situation. First, having watched the incident unfold firsthand, he recognized that Juror Six’s response was improper, but that it merely reflected her exasperation over counsel’s gratuitous utterance of the offensive word and had no connection to her ability to serve impartially. Aptly pinpointing the source of the juror’s frustration after counsel’s fifth use of the word, the court immediately told the juror that her response was not “appropriate” and directed counsel to move on because he had “ask[ed] the same -29- question over and over and over again” and mentioned the epithet about “a half dozen times” (A81). Indeed, Justice Sonberg recognized that the fifth and final use of the term was no longer a “question of establishing a fact” (A85-87). Although Juror Six’s conduct was certainly atypical, not every unexpected midtrial incident merits an inquiry, and, here, nothing in the record indicated that the juror was remotely biased, let alone “grossly unqualified to serve.” CPL § 270.35; see Mejias, 21 N.Y.3d at 76; Buford, 69 N.Y.2d at 299. As noted supra, irritation with one of the attorneys or disagreement with the manner in which the evidence is being presented will rarely, if ever, signal the sort of gross misconduct or impartiality that triggers the need to conduct an inquiry. 69 N.Y.2d at 298-99; see Major, 143 A.D.3d at 1156; Benet, 45 A.D.3d at 1451; Rojas, 220 A.D.2d at 266; see also Panebianco, 543 F.2d at 457 (“That jurors react naturally does not mean they are biased.”). Thus, Justice Sonberg rightly took into account that the juror had not even engaged in “disqualifying conduct,” Mejias, 21 N.Y.3d at 79-80, when, as the judge put it, the juror found the needless use of the racial epithet “distasteful” (A91). Moreover, as the Appellate Division fully appreciated, because the outburst occurred in the judge’s presence, it allowed him to independently assess that it was borne of natural instinct rather than some disqualifying, persistent animus against the defense. New York’s intermediate appellate courts have consistently found that a judge may rely on his own observations in determining whether to forego a juror inquiry. See, e.g., People v. Maldonado, 279 A.D.2d 406, 406 (1st Dept. 2001) (no inquiry -30- where trial judge observed two jurors allegedly conversing and laughing during the defendant’s testimony); People v. Gillis, 213 A.D.2d 422, 422-23 (2d Dept. 1995) (no inquiry where trial judge observed three jurors “audibly and visibly” express disbelief during the defendant’s testimony); People v. Hurst, 113 A.D.3d 1119, 1121 (4th Dept. 2014) (no inquiry where trial judge observed juror’s closed eyes). Indeed, the entire purpose of a “probing and tactful inquiry” as outlined in Buford, is to allow the judge to determine “the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its bearing on the case.” 69 N.Y.2d at 299. On the facts of this case, where the episode unfolded before the judge’s eyes, there was no need to clarify what the juror had experienced or seen, and the judge was at liberty to assess the impact on the juror based on his contemporaneous observations of her. In addition, Justice Sonberg presided over jury selection in this case and had no reason to doubt the juror’s continued impartiality in light of the open and honest answers she had provided during voir dire. For instance, at the outset of trial, Juror Six – a disabled, mother of two who had been raised in the Bronx and East Harlem – had assured the parties that knowledge of defendants’ gang membership would not impact her ability to remain impartial and that she would not favor testimony offered by law enforcement officers (Voir Dire: PA8, 11-13).13 Having previously sat as a 13 To protect the identity of prospective and chosen jurors, the names of those individuals are redacted in the People’s supplemental appendix, including excerpted pages from voir dire where Juror Six is questioned prior to being selected and sworn. We have (Continued…) -31- juror on two criminal trials where a verdict was reached and one where a mistrial was declared, she was well-acquainted with the role and responsibilities of a juror (Voir Dire: PA8-9). Those prior assurances informed the judge’s opinion that the juror’s understandable, momentary lapse in judgment stemmed only from frustration and was detached from her fitness to serve as an impartial juror. See, e.g., People v. Gajadhar, 281 A.D.2d 223 (1st Dept. 2001) (“court properly exercised its discretion in declining to conduct an inquiry” into sitting juror’s conduct and “relied on its own observations and the parties’ voir dire”); People v. Morales, 36 A.D.3d 631 (2d Dept. 2007) (finding that there was “no need to conduct an inquiry” to resolve CPL § 270.35 disqualification claim where juror’s statements during voir dire showed he was not “grossly unqualified”). In light of these factors, Justice Sonberg immediately pursued a sensible and effective course of action that dispelled any possible suspicion of bias. He emphasized that Juror Six’s conduct was not “appropriate” and excused the jury from the courtroom (A81). After conferring with the attorneys, the judge reassembled the jurors and repeated his admonition that they should not speak from the jury box. He then addressed directly the concern that the questioning by counsel might somehow inure to the detriment of defendant. In that regard, the judge charged the jurors “not ______________________ (…Continued) substituted the words “Seat 16 (Round 1)” in place of Juror Six’s name in order to identify her specific responses. -32- to hold it against either one or more of the defendants or the People if you dislike or disapprove of questions that are asked” (A92). By instructing the jurors as a group, the judge properly handled the situation and delivered unequivocal reminders of the jurors’ continuing obligations. See Mejias, 21 N.Y.3d at 80 (no abuse of discretion where the court questioned jurors as a group and unambiguously told them not to deliberate prematurely); People v. Marshall, 106 A.D.3d 1, 10 (1st Dept. 2013) (where a jury note indicated that a juror felt threatened by heated deliberations, the trial court’s admonitions to the jury as a whole were sufficient); People v. Matiash, 197 A.D.2d 794, 795-96 (3d Dept. 1993) (where witness overheard two jurors discussing the case at lunch, but the conversation was “essentially innocuous,” court did not abuse discretion in speaking to jury panel). Finally, Justice Sonberg addressed the possibility that the incident may have affected any of the jurors’ continued impartiality. He invited the jurors to approach him with any concerns over their ability to deliberate fairly due to anything that “happened during the trial” (A92). Juror Six had already proven herself to be far from timid, yet neither she, nor any other juror, came forward after the judge delivered that unambiguous instruction. The jurors’ silence confirmed the court’s conclusion that the episode did not raise any risk of bias among the jurors and did not necessitate a specific inquiry. See Marshall, 106 A.D.3d at 10 (taking juror’s lack of additional complaint after heated deliberations as a signal that “the problems appeared to resolve themselves”); People v. Cosby, 271 A.D.2d 353, 354 (1st Dept. 2000) (upholding trial -33- court’s refusal to conduct individual questioning where court solicited a show of hands on jurors’ ability to remain impartial). The remainder of the trial testimony continued without incident. And, in his final charge, the judge reminded the jurors that their verdict must not be “influenced in any way by bias, prejudice, [or] sympathy” and directed them to resist “any urge” to base their decision “on anything other than the facts” (Charge: PA20, 23). See, e.g., People v. Caminero, 193 A.D.2d 547 (1st Dept. 1993) (any prejudice resulting from prosecutor’s opening statements was “dissipated” by charge that the verdict should not be “motivated” by sympathy or “influenced” by feelings). Of course, the jurors are presumed to have followed the court’s instructions. People v. Davis, 58 N.Y.2d 1102, 1104 (1983).14 In short, Justice Sonberg prudently exercised his discretion in a manner that adequately addressed the courtroom incident and allayed any concern about prejudice. Nonetheless, defendant now insists that a specific inquiry of Juror Six was required because her reaction during defense counsel’s cross-examination was a “facial indication of bias” and indicative of the fact that she could not “dispassionately” weigh the evidence (DB: 25-33). But any claim that the juror’s conduct reflected anything more than temporary frustration enjoys no record support. Despite 14 The verdict itself reflects that the jurors adhered to the court’s instructions. As noted, the jurors either acquitted defendant or failed to reach a verdict on four of the five counts in the indictment, which included the top charges that defendant faced. -34- defendant’s appellate characterization, the juror’s remarks, clearly directed at her discomfort at hearing the unfiltered version of a racial slur, fell far short of indicating that she found counsel and his entire cross-examination offensive (contra DB: 25, 29). Indeed, the circumstances of this case are distinguishable from those where blatant juror bias necessitated an inquiry. Cf. Rodriguez, 71 N.Y.2d at 220 (inquiry and discharge required where juror was biased against Hispanics and held it against Hispanic defendant); People v. Rukaj, 123 A.D.2d 277, 280 (1st Dept. 1986) (inquiry required after jurors sent note that they were unable to reach a verdict “because of speculations and biased feelings”).15 To be sure, Juror Six interjected that she would “leav[e]” if counsel continued to rehash co-defendant Wiggins’ use of the epithet (A81). Defendant speculates from those words that the juror was unable to separate her emotions from facts in evidence. But tellingly, the juror did not react the first four times she heard the epithet, demonstrating her appreciation of its relevance. By the time of the juror 15 Defendant endeavors to align his case with Mark v. Colgate University, 53 A.D.2d 884 (2d Dept. 1976) (DB: 30-33), however, that case is inapposite for two important reasons. First, Mark is a civil case and the Appellate Division, Second Department’s conclusion that a juror should have been removed after exhibiting “vehemence and hostility” towards the plaintiff’s attorney rested on the application of a civil statute, which affords trial judges much greater latitude than CPL § 270.35 in determining whether a juror may continue to serve. See CPLR § 4106 (“If, before the final submission of the case, a regular juror dies, or becomes ill, or for any other reason is unable to perform his duty, the court may order him to be discharged . . .”) (emphasis added). Thus, the court found that the juror’s vehement and continuing outburst blaming the plaintiff’s attorney for the length of the trial was cause for the juror’s discharge. Second, and in stark contrast to the course chosen by Justice Sonberg, the trial judge in Mark took absolutely no curative action following the outburst. -35- outburst, the repetition of the term was no longer “a question of establishing a fact” (A86), as the court put it. Rather, it was the fifth iteration of the term after Davis had already conceded the point. Of course, counsel was permitted to elicit even unsavory facts to promote defendant’s cause, and the jurors were required to consider those facts as evidence. However, once counsel elected to flaunt a provocative fact for a fifth time, he could not rightfully complain when his style of advocacy induced a juror to have an entirely predictable reaction. In that regard, People v. Spencer, 29 N.Y.3d 302 (2017), on which defendant relies (DB: 29-30), is inapposite. In Spencer, this Court found that a juror should have been discharged as “grossly unqualified” after she declared that she could not “separate her emotions from her ability to deliberate” and could not reach a verdict based only on the evidence presented at trial. Id. at 311. Indeed, the trial court in Spencer characterized the juror’s statements as definitively acknowledging that she could not “do what the law require[d] [her] to do,” id., rendering her an unfit juror. In contrast, here, Juror Six’s visceral reaction not only failed to signal a disqualifying bias but, by all appearances, the emotion expressed plainly had dissipated by the time Justice Sonberg directed the jury to report any doubts as to their continuing impartiality, a directive that prompted no response from any of the jurors. Finally, defendant suggests that Justice Sonberg should not have relied on People v. Mejias in declining to conduct an inquiry of Juror Six because, in defendant’s view, Mejias is “distinguishable” from the facts at hand (DB: 33-35). In Mejias, after the -36- parties rested, a juror sent the judge a handwritten note stating, “we want to know how/when and under what pretext” two co-defendants met. 21 N.Y.3d at 77. This Court found that the trial judge properly declined counsel’s request for an inquiry to ascertain whether the jurors had improperly discussed the case. As the Court reasoned, the juror note did not raise serious questions of impartiality and was indicative of only “two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence . . . .” Id. at 79. Since neither possibility, by itself, would “render a juror grossly unqualified,” there was no indication “that the note-writing juror’s impartiality was in doubt or that the juror had committed misconduct.” Id. at 80. As a result, no inquiry was necessary. Defendant insists that the trial court “misapplied” Mejias in determining that no specific inquiry was necessary. As an initial matter, the judge’s reference to Mejias was practically an afterthought, which he raised after he had already determined that the juror episode did not warrant an inquiry. In any event, the two cases are aligned in that neither the juror behavior in Mejias nor the juror outburst here constituted either disqualifying conduct or a plain indication of bias. Even more favorable, unlike the judge in Mejias who merely received a note from the jurors, Justice Sonberg benefitted from his independent, firsthand observations of the juror in question. Those observations served to confirm that Juror Six’s conduct was not indicative of a disqualifying bias. For those reasons, the legal standard announced in Mejias is entirely -37- consistent with the judge’s discretionary decision that the juror’s midtrial outburst was insufficient to trigger the need for an inquiry. Equally unavailing is defendant’s argument that Justice Sonberg’s comments collapsed the distinction between the “threshold for [a juror] inquiry and discharge” (DB: 33, 36-38). First, if defendant believed that the judge had misapprehended or misstated the holding in Mejias, then it was incumbent upon him to make his protest known. Setting aside defendant’s failure to raise any issue with the judge’s language, Justice Sonberg properly recognized, in accordance with Mejias, that a defendant may not compel an individualized inquiry with only a speculative allegation that a juror is grossly unqualified. Indeed, the judge fulfilled his role of analyzing the nature of the juror’s conduct, along with any indicia of partiality, to determine whether an inquiry was in fact needed. That approach did not blur the distinction between cause for an inquiry and cause for discharge; instead, it allowed Justice Sonberg to explain why the “unique facts” before him, Mejias, 21 N.Y.3d at 79, involving a juror’s “distaste[ ]” for the gratuitous use of an epithet, did not facially implicate the juror’s impartiality (A86, 91). By contrast, if Juror Six’s conduct had demonstrated that she could be biased, then an inquiry into her ability to render a fair and impartial verdict would have been appropriate. Importantly, the judge suggested that he would have questioned the juror had her conduct risen to “grounds for removal” (A91), paralleling the language -38- in Mejias that the need for an inquiry is triggered when a juror engages in some “disqualifying conduct.” 21 N.Y.3d at 80.16 * * * In sum, Justice Sonberg’s handling of a sworn juror’s brief reaction to counsel’s persistent incorporation of a racial epithet into his cross-examination of Davis was entirely proper. Defendant’s claim to the contrary is unpreserved and meritless. 16 Defendant takes particular issue with Justice Sonberg’s initial statement that, “unless it’s clear on its face that a juror is grossly disqualified . . . there is no need to question the individual juror” (DB: 37). Though imprecise, the judge’s statement does not suggest that he misapprehended Mejias, especially in light of the fact that he subsequently clarified his comment. Indeed, Justice Sonberg additionally explained that “you don’t question the individual juror unless the conduct would be grounds for removal in and of itself,” suggesting that, earlier, he had mistakenly substituted the words “grossly disqualified” for “disqualifying conduct” (A91). In any event, as discussed above, Justice Sonberg demonstrated his understanding of the holding announced in Mejias with his apt explanation of why the particular circumstances before him did not demand an inquiry. -39- POINT II THE TRIAL COURT PROPERLY ADMITTED BRIEF BACKGROUND TESTIMONY DESCRIBING THE CULTURE AND CUSTOMS OF THE GANG IN WHICH THE THREE DEFENDANTS WERE MEMBERS. ANY CLAIM THAT THE EVIDENCE EXCEEDED PERMISSIBLE BOUNDS IS UNPRESERVED (Answering DB, Point II). As charged in the indictment and proven at trial, defendant and Jonathan Batticks joined Reginald Wiggins in assaulting Steven Davis after Wiggins instigated a fight with Davis following a verbal argument with him. By all accounts, defendant was wholly uninvolved in the dispute between Davis and Wiggins that precipitated the fight, and, because of that, the People sought to introduce evidence of motive to prove defendant’s connection to the charged crime. In response to the People’s proffer, the trial court admitted evidence demonstrating that all three men were affiliated with the Bloods gang and allowed a police investigator to testify about common practices of Bloods members, including why members might act on behalf of one another. On appeal to the Appellate Division, First Department, defendant argued that the trial court erred in allowing the People to introduce what he characterized as “extensive” evidence proving defendant’s membership in the Bloods and describing some customs of the gang. The Appellate Division rejected those claims because the “level of detail permitted by the court was highly probative of defendant’s motive” to participate in a dispute that did not involve him, and further illuminated defendant’s -40- relationship with co-defendants Batticks and Wiggins. Bailey, 148 A.D.3d at 548. Moreover, the trial court’s “thorough instructions minimized any prejudicial effect.” Id. (A2-3). Before this Court, defendant seems to abandon his challenge to the evidence proving defendant’s membership in the Bloods, but renews his claim that the “sheer volume” of testimony about the customs of the gang strayed beyond the authorized purposes of the testimony and was unduly prejudicial (DB: 46-56). Defendant’s claim is both unpreserved and unavailing on the merits. A. The Relevant Record On April 22, 2013, the People made an oral application, pursuant to People v. Molineux, 168 N.Y. 264 (1901), to introduce admissions made by defendant and his two co-defendants indicating that, at the time of the assault on Davis, they were members of the Bloods. The People asked to introduce statements that the three men had previously made to corrections officers confirming their affiliation with the gang. In addition, the prosecutor intended to elicit a statement made by co-defendant Batticks during the assault, in which Batticks asserted that there was “no such thing as a fair fight” and invoked the words “Bloods power” (A46-47). Finally, the People sought permission to introduce limited testimony from a gang intelligence officer, who would provide some background information on the Bloods and explain why gang members might “act on behalf of one another” (A45, 48-49). -41- The prosecutor argued that the proffered evidence was probative of defendant’s motive and intent to participate in the assault. Specifically, evidence that defendant, Batticks, and Wiggins were members of the same gang tended to establish a shared motivation among the three men to attack Davis. The testimony would explain why defendant chose to participate in the violent assault, despite his lack of involvement in the initial argument between Davis and Wiggins (A46). Counsel for co-defendant Wiggins, speaking on behalf of all three defendants, acknowledged that the proffered evidence was relevant as an “exception to the Molineux rule” to prove motive, but opposed the admission of it anyway. Counsel asserted that the evidence had little probative value because the People could prove their case solely by arguing that two of Wiggins’ “friends” came to his aid during a fistfight with the victim. Therefore, counsel argued, there was “no reason” to admit testimony about gang membership, and the resulting prejudice would outweigh the probative value. Counsel added that admitting Batticks’ statement during the assault that “Bloods rule” was the “most problematic” and should be excluded (A50-53). Justice Sonberg ruled that he would permit the People to introduce the testimony, because the “significant” probative value of the proffered evidence outweighed any prejudicial effect. The court stressed that the jurors would undoubtedly wonder why defendant and Batticks would have come to Wiggins’ aid and “escalate the attack” (A52). With regard to the statement “power Bloods rule,” the court noted that Batticks had actually “articulated” the reason for his participation -42- in the attack, a fact that underscored the probative value of the proffered evidence (A54). The court further allowed the People to introduce background information from a gang intelligence officer pertaining to the practices of the Bloods, but told the People to limit the scope of the testimony and avoid a “fifteen-minute primer on gangs in New York” (A60). Finally, the court invited the defense attorneys to propose a limiting instruction to minimize any prejudicial effect and promised to instruct the jurors to consider the evidence “only on the issue of motive” and not “for any other purpose” (A53-54, 59). During jury selection, the three defense attorneys repeatedly asked prospective jurors whether hearing evidence of the defendants’ gang membership would affect their ability to be “fair and impartial” (A11-13, 18-19, 22-23, 24-25, 30-38). In response to that line of inquiry, Justice Sonberg admonished the prospective jurors several times that, “it’s not illegal to belong to a gang”; membership in a gang does not mean that a person is “culpable in this case”; and that “one of the basic rules of our criminal justice system is that you don’t convict people for . . . the groups they belong to” (A14-15, 17, 30-31, 36). The People’s evidence spanned more than 600 pages of the trial record, including testimony from six witnesses and the introduction of 39 exhibits. The background testimony about the culture and hierarchy of the Bloods gang in Manhattan Detention Complex (MDC) accounted for only 10 pages of the transcript, (Rodriguez: A148-53, 167, 194-95). Investigator Rodriguez, who had experience in -43- gang intelligence, explained that Bloods members are organized into different “sets,” or subgroups, have methods to identify one another as gang members, and move “upward” in the ranks by “put[ting] in work,” or committing acts of violence because they are “told to” (Rodriguez: A150-53). Not once during that line of questioning did any of the three defendants protest the scope of Rodriguez’s testimony. Later, consistent with the trial court’s ruling, Davis and a corrections officer testified that the three co-defendants were affiliated with the Bloods (Davis: A442-43, 460-461; Slowly: A411-12; People’s Ex. 39 [stipulation]). Defendant lodged no objection to the scope of that testimony either. During the court’s final charge, Justice Sonberg gave a limiting instruction regarding evidence of defendants’ gang membership. He instructed the jurors in accordance with the pattern CJI for uncharged crimes, telling them that the evidence “must not be considered” as proof of defendants’ “propensity or predisposition to commit the crimes charged.” The court then informed the jurors that they could consider the evidence solely to decide whether membership in the Bloods provided defendant with a “motive” to commit the charged offenses and whether defendant had the “intent” required for the assault charges. The court emphasized that if the jurors found the evidence “believable,” then they could consider it “for that limited purpose” only (A1038-39; CJI.2d [NY]: Molineux). Defendant did not object to the charge or seek to expand it in any way. -44- B. Defendant’s Challenge To The Scope of Expert Gang-Related Testimony Admitted At Trial Is Unpreserved and Unavailing. On appeal, defendant does not dispute that evidence of the three defendants’ common gang membership was relevant and admissible at trial (DB: 48). Instead, he argues more narrowly that the volume of background testimony elicited through Investigator Rodriguez regarding the practices of the Bloods was excessive. And, despite his lack of specific objection at trial, defendant adds that the admission of the supposedly excessive evidence violated his constitutional right to a fair trial (DB: 48- 52, 56). Both claims are unpreserved and beyond the review powers of this Court. Below, defendant conceded the relevance of proof that the three defendants were all members of the Bloods. Nonetheless, he argued that the prejudicial effect of their gang membership outweighed its probative value and proposed that proof of his “friend[ship]” with Batticks and Wiggins sufficed to establish the People’s theory of motive. But, defendant never once squarely complained before the trial court that background testimony from Rodriguez was improper. And he never argued that the expert testimony was excessive or suggested that the court refine its ruling, even when the testimony itself was elicited. Thus, defendant has not preserved a question of law for this Court’s review. CPL § 470.05(2); see People v. Hutchinson, 56 N.Y.2d 868, 870 (1982) (defendant did not preserve claim that the judge permitted “excessive volume” of testimony with respect to a similar bank robbery); People v. Sabb, 11 A.D.3d 350, 351 (1st Dept. 2004) (defendant did not preserve claim that the People introduced -45- “excessive and prejudicial details . . . that went beyond the court’s Molineux ruling”). Under the circumstances, it goes without saying that defendant also did not preserve his newfound constitutional complaint about the scope of the expert testimony. See People v. Lane, 7 N.Y.3d 888, 889 (2006). In any event, the trial court’s ruling was a provident exercise of discretion. “Under general evidentiary principles, ‘all relevant evidence is admissible unless its admission violates some exclusionary rule.’” People v. Frumusa, 29 N.Y.3d 364, 370 (2017) (quoting People v. Harris, 26 N.Y.3d 1, 5 [2015]). Of course, evidence of prior bad acts may not be used to demonstrate a defendant’s general propensity toward criminality. People v. Blair, 90 N.Y.2d 1003, 1004-05 (1997). However, evidence of other bad acts may be presented when that evidence can “logically be linked to some specific material issue in the case.” People v. Hudy, 73 N.Y.2d 40, 54 (1988); see also People v. Valentin, 29 N.Y.3d 150, 155 (2017). The classic “Molineux” exceptions apply to evidence which tends to prove intent, motive, knowledge, common scheme or plan, and identity, although that list is “merely illustrative and not exhaustive.” People v. Rojas, 97 N.Y.2d 32, 37 (2001). Particularly relevant here, evidence of “gang activity” may be admitted when it provides “background” information or is “inextricably interwoven” with the charged crime. People v. Kims, 24 N.Y.3d 422, 438 (2014) (citations omitted). Similarly, the People may introduce evidence of uncharged crimes to complete the narrative of the episode or to explain the relationship between the defendant and others involved in -46- the crime. See People v. Till, 87 N.Y.2d 835, 837 (1995). The People may also introduce Molineux evidence “to refute defendants’ contentions at trial[.]” Rojas, 97 N.Y.2d at 38. The balancing of probative value against potential prejudice is “case- specific” and is left to the sound discretion of the trial court, which is “best position[ed] to evaluate the evidence.” People v. Morris, 21 N.Y.3d 588, 597 (2013) (citations omitted); see also People v. Frankline, 27 N.Y.3d 1113, 1115 (2016); People v. Dorm, 12 N.Y.3d 16, 19 (2009). Judged by those standards, the trial court’s Molineux ruling was a proper exercise of discretion. As noted, defendant acknowledges that the majority of gang- related evidence admitted at trial was probative of motive, including testimony from Davis and a corrections officer proving that all three men who participated in the assault were active members of the Bloods. After all, as was previewed during the Molineux application and again at trial, the evidence showed that Davis argued with Wiggins on the linen-exchange line inside MDC. When Wiggins later confronted Davis in his cell and instigated a fight, two previously uninvolved inmates – defendant and Batticks – rushed to Wiggins’ aid and escalated the scuffle into a three-man attack on Davis. Not only did defendant and Batticks insert themselves into the fray without provocation, but Batticks made clear, quite literally, that they were acting in the name of the Bloods gang when he responded to Davis’ pleas for a “fair fight” by shouting “ain’t nothing fair, Blood rules” (Davis: A444-45). -47- As the trial court fully appreciated, Batticks’ statement underscored the nexus between defendant and Batticks’ allegiance to the gang and the reason behind their decision to join Wiggins in the acts of violence against Davis. Thus, defendant’s membership in the Bloods and his continuing affiliation while incarcerated was admitted for a proper, non-propensity purpose. See People v. Hierro, 122 A.D.3d 420, 421 (1st Dept. 2014) (evidence of gang affiliation explained the defendant’s participation in an “otherwise unexplained assault”); People v. Faccio, 33 A.D.3d 1041, 1042 (3d Dept. 2006) (gang evidence was “inextricably interwoven” with charged crimes and “explained the relationships” of people involved). Moreover, in order for the People to explain fully why joint membership in a gang would have prompted defendant to escalate the assault and strike Davis with a cane, the trial court and the Appellate Division further recognized the non-propensity value of Investigator Rodriguez’s general, background testimony about the Bloods gang. Specifically, testimony that Bloods members divide themselves into “sets” or subgroups, “congregate[]” together while incarcerated, and “move up” in the gang hierarchy by committing acts of violence, substantiated the link between defendant’s affiliation with the gang and his conduct. Without that understanding, the jurors might have been left to wonder why defendant would have risked injury or penalty in order to aid Wiggins. See People v. Cain, 16 A.D.3d 288, 299 (1st Dept. 2005) (evidence of “customs, hierarchies and violent practices of the Bloods” was crucial to the jury’s understanding of the relationship among the defendants and the victim). Indeed, -48- testimony that Batticks shouted “power rule” during the assault – a reference to his “set” (Davis: A448, 451) – would have meant little without Rodriguez’s explanation that Bloods divide themselves into “sets” to which they are loyal (Rodriguez: A152). See People v. Avila, 303 A.D.2d 165, 166 (1st Dept. 2003) (testimony of “gang customs” was relevant to motive and explained the defendant’s conduct and “unusual statements” during the crime). Simply put, the Molineux evidence was admitted for legitimate purposes: to prove defendant’s motive, explain the extent of defendant’s loyalty to Wiggins, and to offer the jurors necessary background information regarding how a gang like the Bloods operated within a detention facility. The need for evidence on this front was especially borne out when defendant’s testimony sought to minimize his relationship with Wiggins and Batticks (Defendant: A717, 726-28, 739-40). Moreover, as previewed in defense counsel’s opening statement, defendant offered a competing – though unpersuasive – narrative that he had acted in self-defense when he beat Davis in a “one-on-one” fight (see Defendant’s Opening: PA17-18). The People were certainly entitled to undermine that justification defense with relevant, admissible testimony explaining how defendant’s gang affiliation might impact his behavior inside MDC and why defendant might attempt to shield his fellow gang members from blame. Indeed, intermediate appellate courts have uniformly found that expert testimony elucidating the narrative of a gang-related crime or describing how gang members commit acts of violence in accordance with a hierarchical structure has -49- unquestionable probative value. See, e.g., People v. Ford, 133 A.D.3d 442, 442 (1st Dept. 2015); People v. Murray, 116 A.D.3d 1068, 1069 (2d Dept. 2014); People v. Tatro, 53 A.D.3d 781, 784 (3d Dept. 2008). Finally, as this Court has held, the People were not bound to limit their proof to the minimum evidence necessary to establish a prima facie case, but were entitled to present all relevant evidence available to them. People v. Alvino, 71 N.Y.2d 233, 245 (1987). Thus, the probative value of the expert testimony was manifest.17 This is not meant to suggest that Justice Sonberg was unmindful of the potential prejudice of the testimony. At the time of his ruling, the judge cautioned the People not to “turn” the testimony into a lengthy “primer on gangs” (A60). Thus, Investigator Rodriguez testified for a mere 10 transcript pages and his testimony was academic in tone: he spoke generally about how Bloods members communicate with each other, organize themselves, and advance within the gang’s hierarchy. At no point did Rodriguez implicate defendant in any gang-related crimes. Importantly, the trial court limited any possible prejudice by instructing the jurors that evidence of defendant’s gang membership was admitted only for the “limited purpose” of proving 17 Defendant makes an additional, offhand claim that the People’s cross-examination of him “strayed” beyond permissible purposes (DB: 51-52). That claim, too, is unpreserved. Defendant made a single, unelaborated objection to the People’s cross-examination of him on this issue (Defendant: A730). CPL § 470.05(2); see People v. McDowell, 47 N.Y.2d 858, 859 (1979). In any event, the People properly delved into defendant’s history with the gang in order to rebut his trial assertion that the violence was unmotivated by gang loyalties. See Till, 87 N.Y.2d at 837 (for jurors to have a “thorough appreciation . . . of the competing theories of what happened and why,” uncharged crimes evidence was “relevant and material”). -50- his motive and was not proof that he had a “propensity or predisposition to commit the crimes charged” (A1038-39). That instruction, the adequacy of which was never challenged and which the jury is presumed to have followed, appropriately minimized the risk of undue prejudice. Davis, 58 N.Y.2d at 1104; see People v. Small, 12 N.Y.3d 732, 733 (2009). Still, defendant complains that the volume of background evidence describing “prison violence” committed by gang members was improper (DB: 48, 50-51). Putting aside the lack of preservation, defendant identifies as excessive only Investigator Rodriguez’s explanation that Bloods members may be rewarded for following orders to perform a “hit.” As discussed, that limited testimony spoke directly to defendant’s motive for the crime at issue and curbed the possibility that the jurors would be misled by defendant’s incredible claims of self-defense. By that point, the jurors had already been exposed to the facts of defendant’s charged participation in the assault, as well as his membership in a gang with a reputation for violence. Rodriguez’s exceedingly brief testimony merely offered context for the crime without endangering the jurors’ objectivity with additional prejudicial details. In arguing to the contrary, defendant relies on two decisions that are inapt, although prove useful by comparison (DB: 49-50). Each case involved the trial court’s improper admission of gang-related evidence that was untethered from the charged crime. See People v. Singleton, 139 A.D.3d 208 (1st Dept. 2016) (error to admit several-week old photograph showing the defendant making a gang sign and holding a -51- different gun than the one recovered from his car; gun depicted in photograph had no apparent connection to the charged crime and did not refute any trial defense); United States v. Hendrix, 52 F.3d 326 (6th Cir. 1995) (error to admit photograph portraying the defendant standing next to one person holding cash and a second person displaying a gang symbol; the People never alleged that the defendant committed the drug crime at issue as part of gang activity). Here, by striking contrast, Batticks invoked the name of the gang during the assault, creating an inextricable connection between the Molineux evidence and the charged crime. Moreover, testimony that gang members commit acts of violence under instruction or to rise in the ranks spoke directly to the material issue of defendant’s motive to participate in the assault. Defendant further argues that the prosecutor improperly referenced the Bloods gang during her summation in order to attack defendant’s credibility (DB: 52-53). This claim deserves short shrift. Not a single one of the comments isolated on appeal by defendant prompted an objection from counsel and, therefore, defendant’s suggestion that the “incendiary” comments deprived him of a fair trial presents no question of law for this Court’s review. CPL § 470.05(2); People v. Balls, 69 N.Y.2d 641, 642 (1986). Beyond that, as discussed, the principle reason the People sought to introduce the evidence in the first place was to demonstrate defendant’s motive. It would have made little sense to omit references to the Bloods in the People’s final argument, especially after defense counsel argued that defendant acted in self-defense and without pressure from his gang affiliation (A939-40, 944-45, 953-59). Indeed, -52- arguments highlighting defendant’s contradictory statements regarding his affiliation with the Bloods, along with remarks that defendant would “take[ ] the fall” for fellow Bloods or use his Bloods status to influence witness testimony (A978-81, 1000-03), referred to matters squarely in evidence and rebutted defendant’s claims. Finally, even if the trial court improperly admitted portions of testimony related to the Bloods, any alleged Molineux violation could not possibly have affected the trial’s outcome. Kims, 24 N.Y.3d at 438. As explained, it was inevitable that the jurors would have heard at least some evidence of defendant’s and his co-defendants’ membership in the Bloods because, as defendant acknowledges, that evidence was certainly admissible to prove motive. Significantly, even without additional context from Rodriguez, there was ample firsthand, eyewitness testimony implicating defendant in the violence. Thus, there is no record basis for defendant’s view that minimal additional testimony from Rodriguez about the Bloods was so “inflammatory” that it distracted the jurors and “obscured significant defects” in the People’s case (DB: 53-55).18 18 In arguing that the admission of the Molineux evidence was not harmless, defendant points to three exchanges the defense attorneys had with prospective jurors during jury selection. Defendant contends two seated jurors and one non-seated juror admitted that they held biases against Bloods members, exacerbating the harm (DB: 53). Defendant’s complaint is unpersuasive. Surely, defendant was free to delve into any viewpoint held by a prospective juror that might impact his impartiality. But, having elected to explore the gang issue, defendant cannot, in hindsight, complain about the jurors’ honest answers and speculate that those views impacted how the jurors weighed the evidence. Tellingly, counsel (Continued…) -53- In that regard, Davis testified credibly at trial that, after he had an argument with Wiggins, Wiggins twice united with defendant and Batticks to corner Davis and beat him. That account was corroborated by the testimony of Corrections Officer Weise, who witnessed Wiggins and Batticks repeatedly pummeling Davis and saw defendant strike Davis in the face with a wooden cane (Weise: A321-24). Photographs of Davis’ injuries, including a bleeding gash to the side of his right eye, swelling and bruising across his face, and lacerations to his lips, in addition to testimony from Davis’ treating physician, similarly corroborated Davis’ testimony (Davis: A477-480; Barnes: A285, 304; People’s Ex. 35-36 [10/6/11 photographs of Davis’ injuries]). Defendant resurrects his claims that Davis testified inconsistently and that defendant acted in self-defense during a one-on-one fight with Davis (DB: 54-55), but the jury resolved those credibility determinations in favor of the People and there is no need to re-examine them now. Thus, the jury convicted defendant based on overwhelming evidence of his guilt, and not because of any purportedly inflammatory testimony offered by Investigator Rodriguez. See People v. Gillyard, 13 N.Y.3d 351, 356 (2009). ______________________ (…Continued) below did not challenge either of the two seated jurors for cause, nor did he exercise his remaining peremptory challenge against either of them (Voir Dire: A26-27, 39-41). -54- * * * In sum, defendant’s challenge to the volume of gang-related evidence admitted at trial is unpreserved and unavailing. The court’s Molineux ruling was a fair and provident exercise of the court’s discretion. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: REBECCA HAUSNER Assistant District Attorney HILARY HASSLER REBECCA HAUSNER Assistant District Attorneys Of Counsel December 6, 2017 /GlA