People v. Morgan, 24 A.D.3d 950 (N.Y. App. Div. 2005). · Go Syfert
People v. Morgan, 24 A.D.3d 950 (N.Y. App. Div. 2005). Cases Citing This Book View Copy Cite
19 citation events (19 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Malloy (nyappdiv, 2018-11-21)
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Malloy
N.Y. App. Div. · 2018 · confidence medium
The explanation proffered by the prosecutor, which need not be persuasive or plausible but only "facially permissible" ( People v Smocum , 99 NY2d 418, 422 [2003]; see Purkett v Elem , 514 US 765, 768 [1995]), was race-neutral and thus satisfied the People's burden under step two ( see People v Hernandez , 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]; People v Acevedo , 141 AD3d 843, 846 [2016]; People v Morgan , 24 AD3d 950, 952 [2005], lv denied 6 NY3d 815 [2006]; People v Bodine , 283 AD2d 979, 979-980 [2001], lv denied 96 NY2d 898 [2001]; People v Diaz , 269 AD2d 766, 766 [2000], lv den…
discussed Cited as authority (rule) People v. Cummings
N.Y. App. Div. · 2018 · confidence medium
However, we agree with defendant that County Court should not have required him to publish for the jury his tattoo bearing, among other things, his street name because it had little probative value, particularly given the other testimony regarding the tattoo, and doing so was prejudicial ( see People v Morgan , 24 AD3d 950, 952-954 [2005], lv denied 6 NY3d 815 [2006]; compare People v Miranda , 77 AD3d 1323, 1324 [2010], lv denied 16 NY3d 833 [2011]).
discussed Cited as authority (rule) People v. Collier
N.Y. App. Div. · 2017 · confidence medium
Moreover, even if we were to reach defendant’s unpreserved challenges, we would not find that the prosecutor’s misstatement of the law or other comments deprived defendant of a fair trial, as County Court correctly instructed the jury on the element of intent with respect to the robbery and attempted robbery charges (see People v Bryan, 46 AD3d 1219, 1221 [2007], lv denied 10 NY3d 809 [2008]) and, viewing the summation as a whole, the People did not engage in a pervasive and flagrant pattern of misconduct so as to deprive defendant of a fair trial (see People v Grady, 40 AD3d 1368, 1374-13…
discussed Cited as authority (rule) People v. Green
N.Y. App. Div. · 2016 · confidence medium
According appropriate deference to the court’s determination (see People v Hecker, 15 NY3d at 656-657 ; People v Knowles, 79 AD3d 16, 21 [2010], lv denied 16 NY3d 896 [2011]), we find no error in its finding that the proffered justification was valid and nonpretextual (see People v Wells, 7 NY3d 51, 58 [2006]; People v English, 119 AD3d 706, 706 [2014], lv denied 24 NY3d 1043 [2014]; People v Lee, 80 AD3d 877, 879-880 [2011], lv denied 16 NY3d 833 [2011]; People v Morgan, 24 AD3d 950, 952 [2005], lv denied 6 NY3d 815 [2006]). *1041 Next, defendant argues that Supreme Court erroneously denied…
discussed Cited as authority (rule) People v. Henry
N.Y. App. Div. · 2015 · confidence medium
As for the questions about defendant’s tattoos, even if we were to assume that they were irrelevant and prejudicial, they were limited, and we cannot conclude that the failure to object to them rendered the trial unfair (see People v Briskin, 125 AD3d 1113, 1122 [2015]; People v Jordan, 99 AD3d 1109 , 1110 [2012], lv denied 20 NY3d 1012 [2013]; People v Morgan, 24 AD3d 950, 953 [2005], lv denied 6 NY3d 815 [2006]).
discussed Cited as authority (rule) People v. Henderson
N.Y. App. Div. · 2014 · confidence medium
A determination as to whether a race-neutral reason is pretextual is a pure issue of fact vesting the trial court with broad discretion to determine credibility (see People v Hecker, 15 NY3d 625, 656 [2010]), especially where the reason is based upon the body language and demeanor of the juror, which is not apparent from a cold record (see People v Morgan, 24 AD3d 950, 952 [2005]).
discussed Cited as authority (rule) People v. Henderson
N.Y. App. Div. · 2014 · confidence medium
A determination as to whether a race-neutral reason is pretextual is a pure issue of fact vesting the trial court with broad discretion to determine credibility (see People v Hecker, 15 NY3d 625, 656 [2010]), especially where the reason is based upon the body language and demeanor of the juror, which is not apparent from a cold record (see People v Morgan, 24 AD3d 950, 952 [2005]).
discussed Cited as authority (rule) People v. Callicut
N.Y. App. Div. · 2012 · confidence medium
The prosecutor’s explanations, which need not be persuasive or plausible but only “facially permissible” (People v Smocum, 99 NY2d at 422 ; see Purkett v Elem, 514 US 765, 768 [1995]; People v Morgan, 24 AD3d 950, 951 [2005], lv denied 6 NY3d 815 [2006]), were race neutral and overcame any inference of discrimination set forth by the defense (see People v Ardrey, 92 AD3d 967, 970 [2012], lv denied 19 NY3d 865 [2012]; People v Simmons, 31 AD3d 1051, 1053 [2006], lv denied 7 NY3d 929 [2006]).
discussed Cited as authority (rule) People v. Callicut
N.Y. App. Div. · 2012 · confidence medium
The prosecutor’s explanations, which need not be persuasive or plausible but only “facially permissible” (People v Smocum, 99 NY2d at 422 ; see Purkett v Elem, 514 US 765, 768 [1995]; People v Morgan, 24 AD3d 950, 951 [2005], lv denied 6 NY3d 815 [2006]), were race neutral and overcame any inference of discrimination set forth by the defense (see People v Ardrey, 92 AD3d 967, 970 [2012], lv denied 19 NY3d 865 [2012]; People v Simmons, 31 AD3d 1051, 1053 [2006], lv denied 7 NY3d 929 [2006]).
discussed Cited as authority (rule) People v. Knowles (2×) also: Cited "see"
N.Y. App. Div. · 2010 · confidence medium
Likewise, the prosecutor’s exercise of a peremptory challenge as to juror No. 11 based upon the good faith belief that he had prosecuted several relatives with the same name, including siblings (and that she may have been evasive), has, when credited, been found to be not racially motivated (see People v Morgan, 24 AD3d at 951; People v Walker, 285 AD2d 660, 664 [2001] , Iv denied 97 NY2d 659 [2001], cert denied 535 US 1064 [2002] ).
discussed Cited as authority (rule) People v. Miranda
N.Y. App. Div. · 2010 · confidence medium
That evidence was relevant with respect to defendant’s credibility, particularly the testimony of defendant that he was not familiar with guns before purchasing one for his protection shortly before the crimes occurred (see People v Morgan, 24 AD3d 950, 952-953 [2005], lv denied 6 NY3d 815 [2006]; see also People v Mendoza, 5 AD3d 810, 813-814 [2004], lv denied 3 NY3d 644 [2004]).
discussed Cited as authority (rule) People v. Abrams
N.Y. App. Div. · 2010 · confidence medium
As an offer of proof, counsel related that, according to defendant, the inmate “could testify that there were certain gang threats made against [defendant] . . . at the time of this incident and . . . there could have been someone from a . . . gang who fired this weapon.” Inasmuch as the inmate did not make the alleged threats and would not connect the threats to the shooting, defendant failed to show that the probative nature of the proposed evidence of third-party culpability would outweigh “the countervailing considerations of undue delay and juror confusion” (People v Morgan, 24 AD…
discussed Cited as authority (rule) People v. Perkins
N.Y. App. Div. · 2008 · confidence medium
We perceive neither an abuse of discretion nor the existence of any extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Morgan, 24 AD3d 950, 954 [2005], lv denied 6 NY3d 815 [2006]; People v Jackson, 2 AD3d 893, 897 [2003], lv denied 1 NY3d 629 [2004]; People v Torra, 309 AD2d 1074, 1076 [2003], lv denied 1 NY3d 581 [2003]).
discussed Cited as authority (rule) People v. Harris
N.Y. App. Div. · 2008 · confidence medium
The People provided a race-neutral explanation for their use of a peremptory challenge to excuse an African-American prospective juror, and “we afford considerable deference to [the court’s] determination that the People’s proffered explanation[ ] [was] nonpretextual, especially since the court was present for the entire voir dire and uniquely situated to assess the demeanor and body language of [that prospective] juror” (People v Morgan, 24 AD3d 950, 952 [2005], lv denied 6 NY3d 815 [2006]).
discussed Cited as authority (rule) People v. Mane
N.Y. App. Div. · 2007 · confidence medium
Because that testimony would have only shown that the dormitory assault was also committed by a black male and the victim did not identify defendant as her as sailant, County Court correctly determined that the minimal probative value of such testimony was “outweighed [by] the countervailing considerations of undue delay and juror confusion” (People v Morgan, 24 AD3d 950, 954 [2005], lv denied 6 NY3d 815 [2006]; see People v Schulz, 4 NY3d 521, 528-529 [2005]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Damon Morgan
Appellate Division of the Supreme Court of the State of New York.
Dec 15, 2005.
24 A.D.3d 950
Cardona.
Cited by 15 opinions  |  Published
Cardona, E J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered January 22, 2002, upon a verdict convicting defendant of the crimes of robbery in the first degree, robbery in the second degree (two counts),[*951] grand, larceny in the third degree, assault in the second degree, burglary in the second degree (two counts) and criminal possession of stolen property in the fourth degree.

In 2001, defendant was indicted and charged with the crimes of robbery in the first degree, robbery in the second degree (two counts), burglary in the second degree (two counts), grand larceny in the third degree, assault in the second degree and criminal possession of stolen property in the fourth degree in connection with his purported involvement, along with his mother, Yvette Morgan, in the armed robbery of an Off-Track Betting (hereinafter OTB) parlor in the City of Schenectady, Schenectady County. At the ensuing jury trial, the People advanced the theory that Morgan, an OTB employee, had orchestrated the hold-up which was later perpetrated by defendant and his younger brother. Defendant, on the other hand, put forth an alibi defense, claiming to have been in New York City on the day in question. Defendant was convicted as charged and sentenced to an aggregate term of 25 years in prison.

Defendant first alleges a violation of Batson v Kentucky (476 US 79 [1986]) in the People’s use of peremptory challenges to excuse the only two African-American members in his jury pool. In response, the People do not claim that defendant failed to “make out a prima facie case of purposeful discrimination by showing that the facts and circumstances of the voir dire raise an inference that the [People] excused [the] jurors for an impermissible reason” (People v Smocum, 99 NY2d 418, 421 [2003]; see generally People v Childress, 81 NY2d 263, 266-267 [1993]; People v Bolling, 79 NY2d 317, 323-324 [1992]). Thus, our analysis is limited to determining whether the People advanced a sufficient race-neutral and nonpretextual rationale for excusing the jurors in question (see generally Hernandez v New York, 500 US 352 [1991]; People v Smocum, supra at 422).

With regard to prospective juror No. 14, the People explained that the challenge was based on, among other considerations, the fact that the juror had a son who had been successfully prosecuted by the District Attorney’s office (see People v Anaya, 206 AD2d 380, 380-381 [1994], lv denied 84 NY2d 865 [1994]). Mindful that the People’s race-neutral explanation for the exercise of a peremptory challenge does not have to be plausible or persuasive (see People v Skervin, 13 AD3d 661, 662 [2004], lv denied 5 NY3d 833 [2005]) and need only be “facially permissible” (People v Smocum, supra at 422), we conclude that the People overcame whatever inference of discrimination was set forth by the defense in connection with that juror (see People v Richardson, 193 AD2d 969, 971-972 [1993], lv denied 82 NY2d[*952] 725 [1993]; People v Dabbs, 192 AD2d 932, 934 [1993], lv denied 82 NY2d 707 [1993]; see also People v Ball, 11 AD3d 904, 905 [2004], lvs denied 3 NY3d 755, 4 NY3d 741 [2004]). Moreover, inasmuch as defendant declined to address the issue further during the colloquy with County Court, we cannot conclude that he met his “ultimate burden of showing that the reasons given were merely a pretext for intentional discrimination” (People v Skervin, supra at 662; see People v Payne, 88 NY2d 172, 181 [1996]). Accordingly, there exists no basis for us to disturb County Court’s determination that the People’s challenge to juror No. 14 was based upon a nonpretextual, race-neutral rationale.

As to juror No. 149, the People explained during voir dire that he had been challenged due to his demeanor, his evasive answers to the prosecutor’s questions and a perceived antagonism between him and the prosecutor. Under the circumstances, we find permissible justifications for the exercise of a peremptory challenge (see generally People v Payne, supra at 183; see also United States v Hinton, 94 F3d 396, 397-398 [1996]). Further, we afford considerable deference to County Court’s determination that the People’s proffered explanations were nonpretextual, especially since the court was present for the entire voir dire and uniquely situated to assess the demeanor and body language of this juror (see People v Hernandez, 75 NY2d 350, 356-357 [1990], affd 500 US 352 [1991]; see also People v Bennett, 206 AD2d 382, 383 [1994], lv denied 85 NY2d 859 [1995]).

Defendant next ascribes error to the manner in which he was cross-examined by the People. Specifically, defendant takes issue with the People’s use of a threatening letter allegedly delivered to prosecution witness Danny Erazo and the prosecution’s reference to defendant’s tattoo depicting the grim reaper armed with a smoking gun which is captioned, “Whatever it takes.” Prior to his testimony, defendant attempted to preclude references to his tattoo as unduly prejudicial. The People indicated that the tattoo’s relevance was linked to the letter, which apparently warned Erazo not to testify and was signed, “The Grim Reaper.” After extensive argument, County Court concluded that the tattoo could be utilized as a basis for the People’s inquiry into defendant’s potential authorship of the letter, which was itself germane to defendant’s credibility as a witness. Subsequently, the People had defendant show his tattoo to the jury and describe the significance of its details. The People then presented the letter to defendant and, after he claimed he never saw it before, asked him about the substance of the letter, mak[*953] ing it known that it was subscribed “The Grim Reaper” and indicating that it threatened Erazo.[1]

Although defendant’s tattoo may have provided a good-faith basis for inquiry concerning his potential authorship of the letter (see generally People v Sorge, 301 NY 198, 200-201 [1950]), only a few questions concerning the tattoo, rather than full presentation thereof, were necessary to provide an adequate foundation for discussion of the letter. Moreover, it is apparent that inquiry concerning the letter was unjustified absent an independent theory for its relevance (see e.g. People v Randolph, 18 AD3d 1013, 1015-1016 [2005]; People v Hendricks, 4 AD3d 798, 799 [2004], lv denied 2 NY3d 800 [2004]).

Here, County Court permitted questioning concerning the letter on the exclusive ground that defendant placed his credibility at issue by testifying.[2] This was a permissible exercise of the court’s discretion provided that “the probative worth of the evidence on the issue of defendant’s credibility [outweighed] ‘the risk of unfair prejudice’ ” (People v Williams, 56 NY2d 236, 238-239 [1982], quoting People v Sandoval, 34 NY2d 371, 375 [1974]; cf. People v Ventimiglia, 52 NY2d 350, 359-360 [1981]). In our view, evidence concerning the attempted intimidation of a witness via threats of violence bears a tangential relationship to a defendant’s veracity or honesty and is thus probative on the issue of the defendant’s credibility (compare People v Rockwell, 18 AD3d 969, 970-971 [2005], lv denied 5 NY3d 768 [2005]; People v Mangan, 258 AD2d 819, 820-821 [1999], lv denied 93 NY2d 927 [1999]). Yet, under the circumstances presented, the prejudice inherent in such evidence (see People v Davis, 44 NY2d 269, 274 [1978]; see also People v Miller, 91 NY2d 372, 378 [1998]; People v Chisholm, 282 AD2d 470 [2001], lv denied 96 NY2d 899 [2001]) outweighed its probative value and the People’s use of the tattoo and letter exceeded the bounds of permissible cross-examination.

Ultimately, however, we conclude that reversal of defendant’s convictions is not required since the error was harmless. Questioning concerning the letter and tattoo occupied a small percentage of defendant’s cross-examination and, notably, there was only one reference to the fact that the letter threatened[*954] Erazo. Conversely, defendant admitted to police that he held up the OTB in order to assist Morgan financially, and Morgan testified that defendant gave her a substantial sum just days after the robbery. Defendant also admitted his involvement in a taped conversation with Erazo. Moreover, two OTB staff members, one of whom was familiar with defendant, identified him as the perpetrator who assaulted them and defendant’s fingerprints were found at the rear entrance of the parlor. Given the overwhelming evidence that defendant committed the crimes charged, it cannot be said that there is a substantial probability that defendant would have been acquitted but for the references to his tattoo and the letter (see People v Brown, 20 AD3d 577, 579 [2005], lv denied 5 NY3d 826 [2005]; People v Coager, 266 AD2d 645, 646-647 [1999], lv denied 94 NY2d 917 [2000]; People v Nusbaum, 222 AD2d 723, 726 [1995], lv denied 87 NY2d 1023 [1996]; see generally People v Crimmins, 36 NY2d 230 [1975]).

Turning to defendant’s remaining contentions, we do not agree that County Court abused its discretion in precluding defendant from eliciting testimony from a witness about her observations of suspicious individuals at the OTB parlor in the weeks preceding the holdup. Inasmuch as the witness was not at the OTB on the actual day of the crimes, defendant failed to establish that the probative nature of her testimony on the issue of possible third-party culpability outweighed the countervailing considerations of undue delay and juror confusion (see generally People v Primo, 96 NY2d 351, 355-356 [2001]). Finally, we do not deem the imposition of a 25-year aggregate prison sentence (see Penal Law § 70.02 [3] [a]) to be harsh and excessive given the senseless and violent nature of the crimes committed (see People v Cancer, 16 AD3d 835, 840 [2005], lv denied 5 NY3d 826 [2005]; People v Mitchell, 289 AD2d 776, 779-780 [2001], lv denied 98 NY2d 653 [2002]).

Mercure, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

1

Defendant objected to the prosecutor’s question concerning the message of the letter and moved for a mistrial. Although County Court sustained defendant’s objection “as to form,” the motion for a mistrial was denied.

2

We parenthetically note that, despite defendant’s request (see GPL 240.43), the letter and its potential use as a method of impeaching defendant’s credibility was not a subject of the pretrial Sandoval hearing in this matter (see generally People v Matthews, 68 NY2d 118, 122-123 [1986]).