People v. Davis

188 A.D.2d 420, 591 N.Y.S.2d 1009, 1992 N.Y. App. Div. LEXIS 14504

Opinion

—Judgment, Supreme Court, New York County (Carol Berk-man, J.), rendered March 20, 1991, convicting defendant, after a jury trial, of two counts of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, and sentencing him as a second felony offender, to concurrent terms of 25 years to life on each of the murder counts and 7 Vi to 15 years on the weapon count, and 12 Vi to 25 years on the robbery count, to run consecutively with the first murder count, unanimously affirmed.

Convicted of murdering a prostitute, defendant argues that he was denied a fair trial because the jury was permitted to hear testimony concerning an earlier gun battle he had with the victim’s pimp. The argument is unpreserved, and, in any event, without merit, since the probative value of the evidence on the issue of motive exceeded its potential for prejudice. That a hearing was not held in making this determination of probative value is not per se reversible error (see, People v Ventimiglia, 52 NY2d 350, 362), and the evidence was not used to show defendant’s propensity to commit the crime charged (cf., People v Correal, 160 AD2d 85). Furthermore, the trial court gave proper limiting instructions.

While the prosecutor’s summation comments challenged on appeal would have been better left unsaid, a new trial is not warranted, since the trial court properly charged the jury on the standard of proof, and also because the overwhelming evidence of defendant’s guilt rendered any prejudice harmless (People v Reyes, 119 AD2d 596, lv denied 68 NY2d 772). Concur — Carro, J. P., Wallach, Asch and Kassal, JJ.