People v. Burnell, 89 A.D.3d 1118 (N.Y. App. Div. 2011). · Go Syfert
People v. Burnell, 89 A.D.3d 1118 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
77 citation events (77 in the last 25 years) across 1 distinct court.
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discussed Cited as authority (rule) People v. Everett (2×)
N.Y. App. Div. · 2024 · confidence medium
In making such proper determination, County Court then correctly weighed the probative value of this evidence against any prejudice to defendant, considering the People's contentions that such video also demonstrated defendant's familiarity with and access to weapons; we discern no error in its admission ( see People v Wells , 141 AD3d 1013, 1020 [3d Dept 2016], lv denied 28 NY3d 1189 [2017]; People v Burnell , 89 AD3d 1118, 1121 [3d Dept 2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Bryant
N.Y. App. Div. · 2021 · confidence medium
Moreover, the victim testified before the grand jury that, during the assault and menacing incident, defendant shouted that he was a "shooter," and, although the victim's description of the handgun displayed during the incident did not precisely match the handgun recovered from defendant's residence, defendant's possession of the handgun demonstrated his familiarity with and access to a weapon ( see People v Wells , 141 AD3d 1013, 1016 [2016], lvs denied 28 NY3d 1183 , 1189 [2017]; People v Burnell , 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Latnie
N.Y. App. Div. · 2020 · confidence medium
However, defendant failed to preserve this issue ( see People v Burnell , 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Tyrell , 82 AD3d 1352, 1356 [2011], lv denied 17 NY3d 810 [2011]).
discussed Cited as authority (rule) People v. Conway
N.Y. App. Div. · 2020 · confidence medium
Defendant was aware that he was investigated as a possible suspect in the murder investigation based on the victim's report to the police and, during a telephone call he made from jail to his mother, stated that the victim and his brother had slandered him and that the victim's brother "got what he deserved." As County Court found, this information showing the resentment that defendant had directed against the victim and his brother was relevant to the issues of identity, motive and intent, and the probative value outweighed the prejudice to defendant ( see People v Saunders , 176 AD3d 1384 , …
discussed Cited as authority (rule) People v. Nunes
N.Y. App. Div. · 2019 · confidence medium
"Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness's narrative" ( People v Burnell , 89 AD3d 1118, 1120 [2011] [internal quotation marks, brackets and citations omitted], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Lalonde
N.Y. App. Div. · 2018 · confidence medium
Additionally, based on the seriousness of the offenses committed and given defendant's failure to take any responsibility for the fact that his criminal conduct led directly to the death of the victim, we find no abuse of discretion or extraordinary circumstances that would warrant a modification of defendant's sentence in the interest of justice ( see People v Anthony , 152 AD3d 1048, 1054 [2017], lvs denied 30 NY3d 978 , 981 [2017]; People v Burnell , 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Valcarcel
N.Y. App. Div. · 2018 · confidence medium
To the extent that defendant contends that the remaining elements of the crimes of murder in the first degree and murder in the second degree were contrary to the weight of the evidence, such contention is without merit ( see People v Chaplin , 134 AD3d at 1152 ; People v Burnell , 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Ford
N.Y. App. Div. · 2017 · confidence medium
Upon our review of the record, we find that County Court properly permitted the People to introduce evidence of these two incidents inasmuch as they each provided necessary background information, established defendant’s motive and intent to commit the assault and were more probative than prejudicial (cf. People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]; see generally People v Morris, 21 NY3d 588, 594-595 [2013]).
discussed Cited as authority (rule) People v. Anthony
N.Y. App. Div. · 2017 · confidence medium
“Gener *1051 ally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Mo-lineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness’s narrative” (People v Burnell, 89 AD3d 1118, 1120 [2011] [internal quotation marks, brackets and citations omitted], lv denied 18 NY3d 922 [2012]; see People v Womack, 143 AD3d 1171, 1173 [2016], lv denied 28 NY3d 1151 [2017]).
discussed Cited as authority (rule) People v. Scippio
N.Y. App. Div. · 2016 · confidence medium
His failure to raise timely and specific objections at trial renders his claims of prosecutorial misconduct during the People’s summation unpreserved (see CPL 470.05 [2]; People v Stanford, 130 AD3d 1306, 1309 [2015], lv denied 26 NY3d 1043 [2015]; People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]), and we decline to take corrective action in the interest of justice inasmuch as the challenged comments either constituted a fair comment on the evidence or were responsive to statements made by defense counsel during sum *1188 mation (see People v Fomby, 101 AD3d 1355, 13…
discussed Cited as authority (rule) People v. Womack
N.Y. App. Div. · 2016 · confidence medium
As a general matter, “evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provide [s] necessary background or complete [s] a witness’s narrative” (People v Burnell, 89 AD3d 1118, 1120 [2011] [internal quotation marks and citation omitted], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. McCommons
N.Y. App. Div. · 2016 · confidence medium
The photograph was relevant to the issue of defendant’s identity as the perpetrator of the crime (see People v Cass, 18 NY3d at 560 ), and the fact that the witness was a federal probation officer was necessary background information explaining why defendant was in his presence and the circumstances that led the officer to recognize the similarity in clothing (see People v Alnutt, 107 AD3d 1139 , 1142 [2013], lv denied 22 NY3d 1136 [2014]; People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Wells
N.Y. App. Div. · 2016 · confidence medium
This evidence was material and relevant to show defendant’s possession of and access to the .44 revolver with which he allegedly shot the victim and the .357 revolver that he was also charged with possessing at the party (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Portee, 56 AD3d 947 , 950 [2008], lv denied 12 NY3d 820 [2009]; compare People v Myers, 22 NY3d 1010, 1011 [2013]).
discussed Cited as authority (rule) People v. LaDuke
N.Y. App. Div. · 2016 · confidence medium
In any event, as the investigator made the actual matches by analyzing a photograph of defendant’s license plate, there was no Frye violation (see People v Burnell, 89 AD3d 1118, 1121-1122 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Larkins
N.Y. App. Div. · 2015 · confidence medium
Thus, the evidence that defendant committed another robbery a short time after this unsuccessful attempt was admissible to show his intent and motive to commit this crime (see generally People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Larkins
N.Y. App. Div. · 2015 · confidence medium
Thus, the evidence that defendant committed another robbery a short time after this unsuccessful attempt was admissible to show his intent and motive to commit this crime (see generally People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Malak
N.Y. App. Div. · 2014 · confidence medium
Moreover, even assuming such evidence was subject to a Molineux analysis (see People v Molineux, 168 NY 264, 293 [1901]), we would find such proof was “inextricably interwoven with the charged crime[ ], provide[d] necessary background or complete[d] a witness’s narrative” and was, therefore, properly admitted (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marks and citation omitted]; accord People v Johnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]).
discussed Cited as authority (rule) People v. Malak
N.Y. App. Div. · 2014 · confidence medium
Moreover, even assuming such evidence was subject to a Molineux analysis (see People v Molineux, 168 NY 264, 293 [1901]), we would find such proof was “inextricably interwoven with the charged crime[ ], provide[d] necessary background or complete[d] a witness’s narrative” and was, therefore, properly admitted (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marks and citation omitted]; accord People v Johnson, 106 AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]).
discussed Cited as authority (rule) People v. Mercado
N.Y. App. Div. · 2014 · confidence medium
Were we to address the merits of the claim, we would find that such evidence tended to explain defendant’s motive in possessing the gun (see People v Reid, 97 AD3d 1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 832 [2011]; People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]), and County Court’s failure to expressly recite its discretionary balancing of the probative value of such evidence against its potential for prejudice would not w…
discussed Cited as authority (rule) People v. Mercado
N.Y. App. Div. · 2014 · confidence medium
Were we to address the merits of the claim, we would find that such evidence tended to explain defendant’s motive in possessing the gun (see People v Reid, 97 AD3d 1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 832 [2011]; People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]), and County Court’s failure to expressly recite its discretionary balancing of the probative value of such evidence against its potential for prejudice would not w…
discussed Cited as authority (rule) People v. Mattis
N.Y. App. Div. · 2013 · confidence medium
Considering the brutal nature of the crime, together with defendant’s criminal record and apparent lack of remorse, we find neither an abuse of discretion nor extraordinary circumstances warranting a reduction of the sentence (see People v Callicut, 101 AD3d 1256 , 1264-1265 [2012], lv denied 20 NY3d 1096 [2013]; People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Muller, 72 AD3d 1329, 1336 [2010], lv denied 15 NY3d 776 [2010]).
discussed Cited as authority (rule) People v. Mattis
N.Y. App. Div. · 2013 · confidence medium
Considering the brutal nature of the crime, together with defendant’s criminal record and apparent lack of remorse, we find neither an abuse of discretion nor extraordinary circumstances warranting a reduction of the sentence (see People v Callicut, 101 AD3d 1256 , 1264-1265 [2012], lv denied 20 NY3d 1096 [2013]; People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Muller, 72 AD3d 1329, 1336 [2010], lv denied 15 NY3d 776 [2010]).
discussed Cited as authority (rule) People v. Royster
N.Y. App. Div. · 2013 · confidence medium
Evidence of uncharged crimes was admissible here to establish defendant’s identity and to complete a witness’s narrative that was inextricably interwoven with the evidence of the charged crimes (see People v Bickley, 99 AD3d 1113 , 1114-1115 [2012], Iv denied 20 NY3d 1009 [2013]; People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Royster
N.Y. App. Div. · 2013 · confidence medium
Evidence of uncharged crimes was admissible here to establish defendant’s identity and to complete a witness’s narrative that was inextricably interwoven with the evidence of the charged crimes (see People v Bickley, 99 AD3d 1113 , 1114-1115 [2012], Iv denied 20 NY3d 1009 [2013]; People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Wilson
N.Y. App. Div. · 2013 · confidence medium
People v Roach, 215 NY 592 [1915]; People v Burnell, 89 AD3d 1118, 1121-1122 [2011]; People v Wofford, 66 AD3d 1404, 1404 [2009]; People v Garcia, 299 AD2d 493, 493 [2002]), the County Court properly determined that a Frye hearing was not necessary here.
discussed Cited as authority (rule) People v. Wilson
N.Y. App. Div. · 2013 · confidence medium
People v Roach, 215 NY 592 [1915]; People v Burnell, 89 AD3d 1118, 1121-1122 [2011]; People v Wofford, 66 AD3d 1404, 1404 [2009]; People v Garcia, 299 AD2d 493, 493 [2002]), the County Court properly determined that a Frye hearing was not necessary here.
discussed Cited as authority (rule) People v. Alnutt
N.Y. App. Div. · 2013 · confidence medium
The People’s theory of the case was that defendant — facing dwindling resources, mounting indebtedness and growing frustration over Slaybaugh’s drug use and threatened infidelity — set the fire in order to collect on his insurance policy; defendant, in turn, suggested from the very start that the fire had been set by drug users or dealers in the community as retaliation for defendant’s work as a confidential informant. 8 In our view, evidence of defendant’s use or possession of drugs, as well the tumultuous nature of his relationship with Slaybaugh, provided necessary background in…
discussed Cited as authority (rule) People v. Alnutt
N.Y. App. Div. · 2013 · confidence medium
The People’s theory of the case was that defendant — facing dwindling resources, mounting indebtedness and growing frustration over Slaybaugh’s drug use and threatened infidelity — set the fire in order to collect on his insurance policy; defendant, in turn, suggested from the very start that the fire had been set by drug users or dealers in the community as retaliation for defendant’s work as a confidential informant. 8 In our view, evidence of defendant’s use or possession of drugs, as well the tumultuous nature of his relationship with Slaybaugh, provided necessary background in…
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2013 · confidence medium
“Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme and identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2013 · confidence medium
“Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme and identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012] [internal quotation marks and citations omitted]).
discussed Cited as authority (rule) People v. Myers (2×) also: Cited "see, e.g."
N.Y. App. Div. · 2013 · confidence medium
Here, the identity of the shooter was a key issue at trial and the fact that defendant previously had been seen brandishing the same caliber of handgun as was used to commit the crime was relevant to the issue of identity (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Portee, 56 AD3d 947 , 950 [2008], lv denied 12 NY3d 820 [2009]; People v Rivera, 281 AD2d 702, 703 [2001], lv denied 96 NY2d 805 [2001]; People v Brown, 266 AD2d 863, 863 [1999], lv denied 94 NY2d 860 [1999]).
discussed Cited as authority (rule) People v. Myers (2×) also: Cited "see, e.g."
N.Y. App. Div. · 2013 · confidence medium
Here, the identity of the shooter was a key issue at trial and the fact that defendant previously had been seen brandishing the same caliber of handgun as was used to commit the crime was relevant to the issue of identity (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; People v Portee, 56 AD3d 947 , 950 [2008], lv denied 12 NY3d 820 [2009]; People v Rivera, 281 AD2d 702, 703 [2001], lv denied 96 NY2d 805 [2001]; People v Brown, 266 AD2d 863, 863 [1999], lv denied 94 NY2d 860 [1999]).
discussed Cited as authority (rule) People v. Gordon
N.Y. App. Div. · 2012 · confidence medium
Moreover, viewing the evidence in the light most favorable to the People (see People v Perez, 93 AD3d 1032, 1035 [2012], lv denied 19 NY3d 1000 [2012]), and giving the People the benefit of the rational inferences that can be drawn from it, we find that legally sufficient evidence was presented that defendant was the perpetrator (see People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]; People v Elwood, 80 AD3d 988, 989-990 [2011], lv denied 16 NY3d 858 [2011]).
discussed Cited as authority (rule) People v. Gordon
N.Y. App. Div. · 2012 · confidence medium
Moreover, viewing the evidence in the light most favorable to the People (see People v Perez, 93 AD3d 1032, 1035 [2012], lv denied 19 NY3d 1000 [2012]), and giving the People the benefit of the rational inferences that can be drawn from it, we find that legally sufficient evidence was presented that defendant was the perpetrator (see People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]; People v Elwood, 80 AD3d 988, 989-990 [2011], lv denied 16 NY3d 858 [2011]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2012 · confidence medium
This argument is unpreserved, however, as defendant did not object to the testimony or request any curative instructions (see People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008]).
discussed Cited as authority (rule) People v. Callicut
N.Y. App. Div. · 2012 · confidence medium
Under these circumstances, we find no abuse of discretion or extraordinary circumstances warranting modification in the interest of justice (see People v Burnell, 89 AD3d 1118,1122 [2011], lv denied 18 NY3d 922 [2012]; People v Hansen, 290 AD2d 47, 57 [2002], affd 99 NY2d 339 [2003]; People v Johnson, 277 AD2d 702, 708 [2000], lv denied 96 NY2d 831 [2001]; People v Demand, 268 AD2d 901, 904-905 [2000], lv denied 95 NY2d 795 [2000]).
discussed Cited as authority (rule) People v. Callicut
N.Y. App. Div. · 2012 · confidence medium
Under these circumstances, we find no abuse of discretion or extraordinary circumstances warranting modification in the interest of justice (see People v Burnell, 89 AD3d 1118,1122 [2011], lv denied 18 NY3d 922 [2012]; People v Hansen, 290 AD2d 47, 57 [2002], affd 99 NY2d 339 [2003]; People v Johnson, 277 AD2d 702, 708 [2000], lv denied 96 NY2d 831 [2001]; People v Demand, 268 AD2d 901, 904-905 [2000], lv denied 95 NY2d 795 [2000]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2012 · confidence medium
This argument is unpreserved, however, as defendant did not object to the testimony or request any curative instructions (see People v Burnell, 89 AD3d 1118, 1122 [2011], lv denied 18 NY3d 922 [2012]; People v Echavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008]).
discussed Cited as authority (rule) People v. Jackson
N.Y. App. Div. · 2012 · confidence medium
The testimony regarding defendant’s drug dealing activities provided essential background narrative explaining the victim’s relationship to defendant and the other witnesses, as well as his presence in defendant’s vehicle; the evidence also demonstrated defendant’s opportunity to commit the crime, and was inextricably interwoven with the charged crimes (see People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Smith, 63 AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]).
discussed Cited as authority (rule) People v. Jackson
N.Y. App. Div. · 2012 · confidence medium
The testimony regarding defendant’s drug dealing activities provided essential background narrative explaining the victim’s relationship to defendant and the other witnesses, as well as his presence in defendant’s vehicle; the evidence also demonstrated defendant’s opportunity to commit the crime, and was inextricably interwoven with the charged crimes (see People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]; People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Smith, 63 AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]).
discussed Cited as authority (rule) People v. Bickley
N.Y. App. Div. · 2012 · confidence medium
Evidence of uncharged crimes or prior bad acts may be presented to establish, among other things, a defendant’s intent and identity (see People v Molineux, 168 NY 264, 293 [1901]; People v Buchanan, 95 AD3d 1433, 1436 [2012]; People v Lindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]), and is also admissible when it is “inextricably interwoven” with the conduct that is the subject of the defendant’s trial (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Bickley
N.Y. App. Div. · 2012 · confidence medium
Evidence of uncharged crimes or prior bad acts may be presented to establish, among other things, a defendant’s intent and identity (see People v Molineux, 168 NY 264, 293 [1901]; People v Buchanan, 95 AD3d 1433, 1436 [2012]; People v Lindsey, 75 AD3d 906, 908 [2010], lv denied 15 NY3d 922 [2010]), and is also admissible when it is “inextricably interwoven” with the conduct that is the subject of the defendant’s trial (People v Burnell, 89 AD3d 1118, 1120 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Casado (2×) also: Cited "see, e.g."
N.Y. App. Div. · 2012 · confidence medium
With respect to the testimony concerning defendant’s al leged prior gun possession, we conclude that such testimony was properly admitted as evidence of a motive for the shooting, i.e., to avoid capture in the presence of presumably illegal firearms and to complete the narrative of events by explaining why the police were summoned to the residence (see People v Giuca, 58 AD3d 750, 750 [2009], lv denied 12 NY3d 915 [2009]; People v Clarke, 5 AD3d 807, 809-810 [2004], lv denied 2 NY3d 797 [2004]; see generally People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Burnell, 89 AD3d 1118, 1120-1…
discussed Cited as authority (rule) People v. Casado (2×) also: Cited "see, e.g."
N.Y. App. Div. · 2012 · confidence medium
With respect to the testimony concerning defendant’s al leged prior gun possession, we conclude that such testimony was properly admitted as evidence of a motive for the shooting, i.e., to avoid capture in the presence of presumably illegal firearms and to complete the narrative of events by explaining why the police were summoned to the residence (see People v Giuca, 58 AD3d 750, 750 [2009], lv denied 12 NY3d 915 [2009]; People v Clarke, 5 AD3d 807, 809-810 [2004], lv denied 2 NY3d 797 [2004]; see generally People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Burnell, 89 AD3d 1118, 1120-1…
discussed Cited as authority (rule) People v. Bibbes
N.Y. App. Div. · 2012 · confidence medium
Defendant failed to preserve for our review his further contention that the court should have provided a contemporaneous limiting instruction inasmuch as he failed to request such an instruction (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; see generally People v Sommerville, 30 AD3d 1093, 1094-1095 [2006]).
discussed Cited as authority (rule) People v. Bibbes
N.Y. App. Div. · 2012 · confidence medium
Defendant failed to preserve for our review his further contention that the court should have provided a contemporaneous limiting instruction inasmuch as he failed to request such an instruction (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]; see generally People v Sommerville, 30 AD3d 1093, 1094-1095 [2006]).
discussed Cited as authority (rule) People v. Doll
N.Y. App. Div. · 2012 · confidence medium
“Here, evidence regarding defendant’s prior [business] activities not only provided necessary background information and explained the relationship between defendant and the victim, but also . . . [helped to] establish[ ] defendant’s motive for killing the victim” (People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Doll
N.Y. App. Div. · 2012 · confidence medium
“Here, evidence regarding defendant’s prior [business] activities not only provided necessary background information and explained the relationship between defendant and the victim, but also . . . [helped to] establish[ ] defendant’s motive for killing the victim” (People v Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Blond
N.Y. App. Div. · 2012 · confidence medium
As contemporaneous limiting instructions on the use of such evidence were given twice during the trial, as well as in the final jury charge, any error in failing to give the instructions a third time after the wife’s testimony — a failure that was not called to the court’s attention by counsel — is harmless (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]).
discussed Cited as authority (rule) People v. Blond
N.Y. App. Div. · 2012 · confidence medium
As contemporaneous limiting instructions on the use of such evidence were given twice during the trial, as well as in the final jury charge, any error in failing to give the instructions a third time after the wife’s testimony — a failure that was not called to the court’s attention by counsel — is harmless (see People v Burnell, 89 AD3d 1118, 1121 [2011], lv denied 18 NY3d 922 [2012]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Hashim Burnell
Appellate Division of the Supreme Court of the State of New York.
Nov 3, 2011.
89 A.D.3d 1118
Egan.
Cited by 62 opinions  |  Published
Egan Jr., J.

Defendant was indicted and charged with murder in the first degree, two counts of murder in the second degree and three counts of robbery in the first degree. The charges stemmed from an incident that occurred on May 5, 2005, during the course of which defendant, then two weeks shy of his 20th birthday and while on parole from a prior felony conviction, allegedly robbed and fatally wounded Todd Pianowski (hereinafter the victim) and robbed the victim’s girlfriend, Lauren Parker, at gunpoint in the apartment the victim and Parker shared in the Town of Guilderland, Albany County. Although the People’s first attempt to prosecute defendant ended in a mistrial, a second trial ensued and, at the conclusion thereof, a jury convicted defendant of murder in the first degree and three counts of robbery in the first degree. Defendant thereafter was sentenced as a second felony offender to, among other things, life imprisonment without the possibility of parole upon his conviction for murder in the first degree. This appeal by defendant ensued.

Defendant initially contends that the verdicts are not sup[*1119] ported by legally sufficient evidence and, further, are against the weight of the evidence — arguing primarily that there is insufficient evidence to identify him as the perpetrator. We disagree.

Parker testified that upon arriving at her apartment shortly after 2:00 p.m. on the afternoon in question, she encountered a man, whom she unequivocally identified at trial as defendant, standing in the kitchen and fiddling with a yellow plastic bag from a local grocery store. Almost immediately, defendant put a handgun to her head and demanded that she give him everything in the apartment — a reference she understood to mean any cash or drugs that might be present. Parker noticed the victim lying face down on the living room floor and, as she bent down to retrieve the demanded items from underneath a futon, observed blood on the victim’s body. Defendant pointed to the victim and stated, “[D]o you see him[?] [D]o you see what he got for owing me [$1,500?]” Defendant then picked up the yellow grocery store bag, escorted Parker from the apartment and, while waiting for the elevator, went through her purse and removed her cash and identification. Parker estimated that she observed defendant — face to face and in good lighting — for approximately 5 to 10 minutes and thereafter provided a detailed physical description of her assailant to the police. Parker’s description matched defendant’s general characteristics, as well as the clothing he was photographed wearing when he was arrested approximately eight hours later — including the large, square diamond earrings previously described by Parker.

In addition to the foregoing, police subsequently recovered a backpack that defendant left with a friend on the day of the crimes, which contained, among other things, a yellow plastic grocery bag, a box of .40 caliber ammunition, a woman’s purse and a small travel bag. Parker testified that she last saw the purse, which belonged to her, and the black travel bag, which belonged to the victim, under the futon when she left the apartment on the morning in question. Additionally, a firearms examiner testified that the .40 caliber bullets recovered at the scene were the same style of bullet, i.e., the same flat-nose bullet with the same jacketing material, as those contained in the box of ammunition and, further, that the expended shell casings recovered at the scene bore the same manufacturer’s stamp as those present in the box of ammunition found in the backpack linked to defendant.[1] Moreover, defendant’s fingerprints were discovered on a coffee table in the victim’s apartment, the[*1120] victim’s fingerprints were found on a small plastic bag inside the backpack and security cameras at the victim’s apartment complex showed an individual matching defendant’s description exiting the premises with a plastic bag around the time of the murder. There also was ample testimony detailing defendant’s financial difficulties in the weeks preceding the crimes, as well as his sudden influx of money immediately following the crimes. Finally, defendant expressed an acute awareness of the crimes, as evidenced by his postarrest statements wherein he inquired as to Parker’s welfare and, with regard to the victim’s family, stated, “They probably want to kill me.”

Viewing this evidence in the light most favorable to the People and according them the benefit of every inference that reasonably may be drawn therefrom (see People v Lowin, 71 AD3d 1194, 1196 [2010]), we find legally sufficient evidence to satisfy each and every element of the underlying crimes (see Penal Law § 125.27 [1] [a] [vii]; § 160.15 [1], [2]). Further, despite whatever minor inaccuracies may have existed in Parker’s description of her assailant[2] and notwithstanding defendant’s protestations of innocence, the plausible explanation offered for finding his fingerprints at the scene and the other proof submitted upon his behalf, the record nonetheless contains overwhelming evidence of defendant’s guilt. Accordingly, the verdicts are not against the weight of the evidence.

Defendant next contends that County Court abused its discretion in admitting testimony regarding defendant’s history of drug sales, his recent financial difficulties and his possession of, and attempts to sell, a .40 caliber handgun in the weeks prior to the crimes, asserting that the probative value of such proof was outweighed by its prejudicial effect. Again, we do not agree.

Generally speaking, evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity (see People v Molineux, 168 NY 264, 293 [1901]) — or where such proof is “inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” (People v Tarver, 2 AD3d 968, 969 [2003]; see People v Poquee, 9 AD3d 781, 782 [2004], lv denied 3 NY3d 741 [2004]). Here, evidence regarding defendant’s prior drug dealing activities not only provided necessary background information and explained the[*1121] relationship between defendant and the victim, but also, when viewed in the context of defendant’s financial difficulties, established defendant’s motive for killing the victim (see People v Lee, 80 AD3d 877, 880 [2011], lv denied 16 NY3d 832 [2011]; People v Smith, 63 AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]; People v Camarena, 289 AD2d 7, 7 [2001], lv denied 97 NY2d 752 [2002]). We reach a similar conclusion regarding defendant’s prior possession of a .40 caliber handgun, as such proof demonstrated defendant’s familiarity with and access to weapons (see People v Camarena, 289 AD2d at 8) — even if the weapon described was not directly linked to the crimes for which defendant was on trial (compare People v Lee, 80 AD3d at 880; People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]). As the probative value of such proof outweighed its prejudicial effect, we discern no error in its admission. Finally, defendant’s claim that County Court erred in failing to give contemporaneous limiting instructions regarding such proof is unpreserved for our review and, were we to reach this issue, we would find any error in this regard to be harmless given the overwhelming evidence of defendant’s guilt (see People v Tyrell, 82 AD3d 1352, 1356 [2011], lv denied 17 NY3d 810 [2011]; People v De Fayette, 16 AD3d 708, 709-710 [2005], lv denied 4 NY3d 885 [2005]; compare People v Westerling, 48 AD3d 965, 968 [2008]).

We reach a similar conclusion regarding defendant’s assertion that County Court erred in admitting certain fingerprint evidence without conducting a “complete and thorough” Frye hearing. The primary flaw in defendant’s argument on this point is that the allegedly novel scientific technique at issue — a software program known as MoreHits — did not actually “match” the prints lifted from the crime scene with the known prints belonging to defendant and/or the victim. As the State Police investigator who conducted the fingerprint analysis explained, the MoreHits program allows an examiner to digitally scan a fingerprint lift, enlarge it, adjust the contrast and isolate particular portions of the lifted print. Although such capabilities enable the examiner to focus in on areas where possible points of comparison may exist, the software program itself does not make the “match.” Rather, as the investigator repeatedly and unequivocally testified at trial, he made the final matches by comparing defendant’s exemplar to the fingerprints found on the coffee table in the victim’s living room and by comparing the victim’s postmortem fingerprints to the print found on the inside of the small plastic bag subsequently discovered in the backpack. Specifically, the investigator testified that he physically made these side-by-side comparisons utilizing a standard[*1122] four-power magnifier and a set of small pins to mark the individual points of identification. Thus, as it was the investigator— using familiar and established techniques — who made the actual matches here, we discern no need for a Frye hearing.

As for defendant’s assertion that he was deprived of a fair trial due to comments made by the prosecutor during summation, the challenges now raised by defendant were not preserved by appropriate objection (see People v Robertson, 53 AD3d 791, 793 [2008], lv denied 11 NY3d 857 [2008]; People v Booker, 53 AD3d 697, 704 [2008], lv denied 11 NY3d 853 [2008]), and we decline to exercise our interest of justice jurisdiction with respect thereto (see CPL 470.15 [6] [a]). Finally, we reject defendant’s claim that the sentence imposed was harsh and excessive. Although defendant was only 19 years old at the time of his arrest, he already had amassed a substantial criminal record and, as noted previously, was on parole when he committed the underlying crimes. The record reflects that defendant, who expressed little remorse at sentencing, fired two gunshots at the victim — penetrating the victim’s heart, liver and brain, tearing through the victim’s vena cava and lacerating the blood vessels at the base of the victim’s brain — and thereafter held a gun to Parker’s head, threatening her life if she failed to comply with his demands. Under these circumstances, we cannot say that County Court abused its discretion in imposing sentence, nor do we find any extraordinary circumstances to warrant modification of the sentence in the interest of justice (see People v Hansen, 290 AD2d 47, 57 [2002], affd 99 NY2d 339 [2003]; People v Johnson, 277 AD2d 702, 707-708 [2000], lv denied 96 NY2d 831 [2001]). Defendant’s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Peters, J.R, Spain, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.

1

Although the gun itself was not recovered, a prosecution witness testified that defendant contacted him approximately two to three weeks before (n. cont’d) [*1120] the murder and asked if he knew of anyone who would be interested in purchasing a .40 caliber handgun.

2

For example Parker, who is approximately four feet, nine inches tall, underestimated the height of her assailant.