People v. Martinez

254 A.D.2d 99, 679 N.Y.S.2d 283, 1998 N.Y. App. Div. LEXIS 10689

Opinion

—Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered March 1, 1996, convicting defendant, after a jury trial, of burglary in the first degree and attempted robbery in the first degree, and sentencing her, as a second violent felony offender, to concurrent terms of 6 to 12 years and 4 to 8 years, respectively, unanimously affirmed.

The court properly admitted evidence of a telephone call from defendant to the complainant in which defendant stated that she was “sorry”, and that “it was all about drugs”. The reference to drugs was inextricably interwoven with, and explanatory of, the remainder of defendant’s statement because it was necessary for a complete understanding of the apology, and because defendant had made motive an issue.

Defendant’s remaining claims are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would find that defendant opened the door to the challenged cross-examination concerning her lifestyle, and that the court’s erroneous use of the phrase “or remains” in its burglary charge (see, People v Gaines, 74 NY2d 358) could not have caused any prejudice. Concur — Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.