People v. Rose, 41 A.D.3d 742 (N.Y. App. Div. 2007). · Go Syfert
People v. Rose, 41 A.D.3d 742 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 2 distinct courts.
Strongest positive: People v. Leath (nyappdiv, 2012-08-22)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Leath
N.Y. App. Div. · 2012 · confidence medium
Further, there is no merit to the defendant’s contention that the Supreme Court erred in permitting the prosecution to elicit hearsay testimony from a witness relating to the defendant’s motive, as this testimony was admissible under the “state-of-mind” exception to the hearsay rule (see People v Damon, 78 AD3d 860 [2010]; People v Jean-Baptiste, 51 AD3d 1037, 1038 [2008]; People v Rose, 41 AD3d 742, 742-743 [2007]).
discussed Cited as authority (rule) People v. Leath
N.Y. App. Div. · 2012 · confidence medium
Further, there is no merit to the defendant’s contention that the Supreme Court erred in permitting the prosecution to elicit hearsay testimony from a witness relating to the defendant’s motive, as this testimony was admissible under the “state-of-mind” exception to the hearsay rule (see People v Damon, 78 AD3d 860 [2010]; People v Jean-Baptiste, 51 AD3d 1037, 1038 [2008]; People v Rose, 41 AD3d 742, 742-743 [2007]).
discussed Cited as authority (rule) People v. Alke
N.Y. App. Div. · 2011 · confidence medium
His argument in support of his trial motion of dismissal was sufficiently specific to alert the court to his position (see CPL 470.05 [2]; People v Demolaire, 55 AD3d 621, 621 [2008]; People v Rose, 41 AD3d 742, 742 [2007]).
discussed Cited as authority (rule) People v. Borukhova (2×)
N.Y. App. Div. · 2011 · confidence medium
In some instances, “[t]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant” (Prince, Richardson on Evidence § 8-106, at 502 [Farrell 11th ed]; see People v Gibian, 76 AD3d 583 , 584 [2010]; People v Cromwell, 71 AD3d 414, 414 [2010]; People v Rose, 41 AD3d 742, 743 [2007]).
discussed Cited as authority (rule) Reilly v. Ninia
N.Y. App. Div. · 2011 · confidence medium
The trial court also correctly prohibited the plaintiffs from attempting to impeach the hospital’s expert with a medical journal article which the expert had not accepted as authoritative (see People v Rose, 41 AD3d 742, 743 [2007]; Lipschitz v Stein, 10 AD3d 634, 635 [2004]; Labate v Plotkin, 195 AD2d 444, 445 [1993]).
cited Cited as authority (rule) People v. Damon
N.Y. App. Div. · 2010 · confidence medium
In any event, some of that testimony was admissible pursuant to the state of mind exception to the hearsay rule (see People v Rose, 41 AD3d 742, 743 [2007]).
discussed Cited as authority (rule) People v. Alcantara
N.Y. App. Div. · 2010 · confidence medium
Such testimony was relevant to the witness’s state of mind, and explained why she had lied on that occasion (see People v Jean-Baptiste, 51 AD3d 1037, 1038 [2008]; People v Rose, 41 AD3d 742, 742-743 [2007]; People v Sawyer, 288 AD2d 73 [2001]).
discussed Cited "see" Huertas v. Annucci (2×)
E.D.N.Y · 2023 · signal: see · confidence high
See People v. Rose, 41 A.D.3d 742, 743 , 840 N.Y.S.2d 363 (2d Dep’t 2007); People v. Bierenbaum, 301 A.D.2d 119, 149-151 , 748 N.Y.S.2d 563 (1st Dep’t 2002).
discussed Cited "see, e.g." In re Imani Mc.
N.Y. App. Div. · 2010 · signal: see also · confidence medium
Contrary to the presentment agency’s contention, the appellant’s argument that the complainant did not sustain a “physical injury” within the meaning of Penal Law § 10.00 (9) is preserved for appellate review, since the appellant’s attorney’s arguments in moving to dismiss the petition were sufficiently specific to alert the Family Court to the appellant’s position (cf. CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-21 [1995]; see also People v Rose, 41 AD3d 742, 742 [2007]; People v Blocker, 23 AD3d 575, 575 [2005]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Eric Rose
Appellate Division of the Supreme Court of the State of New York.
Jun 19, 2007.
41 A.D.3d 742
Cited by 13 opinions  |  Published

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered August 25, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the People’s argument, the defendant’s contention that the evidence was legally insufficient to prove his guilt beyond a reasonable doubt is preserved for appellate review since his argument, upon moving to dismiss the indictment at the close of the People’s case, was sufficiently specific to alert the court to the defendant’s position (see CPL 470.05 [2]; People v Jean-Baptiste, 38 AD3d 418 [2007]). However, the defendant’s contention is without merit.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), and giving the People the benefit of every reasonable inference which could be drawn from the circumstantial evidence adduced (see People v Lewis, 64 NY2d 1111, 1112 [1985]; People v Way, 59 NY2d 361, 365 [1983]), we find that the evidence was legally sufficient to establish the defendant’s guilt of intentional murder beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

There is no merit to the defendant’s contention that the County Court committed reversible error by permitting[*743] testimony by a prosecution witness who had been a friend of the victim’s, to the effect that the victim told him to look to the defendant if anything happened to her. “The mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant” (People v Stevens, 174 AD2d 640, 640 [1991] [internal quotation marks omitted]). As the County Court correctly found, the statement at issue was probative of the victim’s state of mind as it related to the state of her marriage and, thus, by extrapolation, to the defendant’s motive for killing her. The prejudice to the defendant from the admission of the statement, although great, was outweighed by its probative value (see People v Bierenbaum, 301 AD2d 119, 145-146 [2002]), and was ameliorated by the trial court’s limiting instruction. Accordingly, the County Court properly admitted the statement under the “state-of-mind” exception to the hearsay rule.

The defendant’s contention that he was denied a fair trial by the County Court’s refusal to allow him, upon cross-examination, to confront the medical examiner, an expert witness for the People, with statements from forensic science journal articles is without merit, even though, contrary to the People’s contention, the issue is preserved for appellate review (see CPL 470.05 [2]; People v Aguilera, 156 AD2d 698, 700 [1989]; cf. People v Goodson, 57 NY2d 828, 830-831 [1982]; People v Fernandez, 280 AD2d 680 [2001]; Walsh v Staten Is. Obstetrics & Gynecology Assoc., 193 AD2d 672, 673 [1993]). On cross-examination, an expert witness may be confronted with a passage from a treatise, book, or article which contradicts the opinion that the expert witness previously expressed on the stand if the expert witness has accepted the book, treatise, or article as authoritative (see Watkins v Labiak, 6 AD3d 426, 426-427 [2004]; Walsh v Staten Is. Obstetrics & Gynecology Assoc., supra; Labate v Plotkin, 195 AD2d 444, 445 [1993]; Mark v Colgate Univ., 53 AD2d 884, 886 [1976]; see also Kirker v Nicolla, 256 AD2d 865, 867 [1998]). Although the medical examiner accepted several of the journal articles as authoritative, the defendant failed to show that the content of the articles contradicted the medical examiner’s direct testimony. Accordingly, the County Court did not improvidently exercise its discretion in precluding cross-examination of that witness through the use of the articles.

There is no merit to the defendant’s contention that the People impermissibly exercised peremptory challenges during jury selection to exclude two jurors of color, since the defendant failed to make the requisite prima facie showing of discrimina[*744] tion (see People v Brown, 97 NY2d 500, 507 [2002]; People v London, 38 AD3d 570 [2007]; People v Fryar, 29 AD3d 919, 920 [2006]; People v Harrison, 272 AD2d 554, 554-555 [2000]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The contentions raised only in the appellant’s supplemental pro se brief are unpreserved for appellate review and, in any event, are without merit. Schmidt, J.P., Santucci, Skelos and Lifson, JJ., concur.