People v Morgan (Ted)

[*1] People v Morgan (Ted) 2006 NY Slip Op 51422(U) [12 Misc 3d 143(A)] Decided on July 13, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-121 N CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

TED MORGAN, Appellant.

Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered January 4, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the fourth degree and menacing in the second degree.

Judgment of conviction affirmed.

In this prosecution for criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) and menacing in the second degree (Penal Law § 120.14 [1]), the trial court properly permitted the People to elicit testimony from the complainant about defendant's prior bad acts. Although it would have been better if the trial court had given the jury a limiting instruction when the testimony was received and/or addressed the testimony concerning the defendant's prior bad acts in its charge to the jury (see e.g. People v Williams, 50 NY2d 996, 998 [1981]; People v Thomas, 26 AD3d 241 [2006]; People v DeJesus, 24 AD3d 464 [2005]; People v Melendez, 8 AD3d 680 [2004]; People v McCarthy, 293 AD2d 490, 492 [2002]), such evidence was, in any event, properly admitted as relevant background material to enable the jury to understand the nature of defendant's turbulent domestic relationship with complainant as well as to establish defendant's intent (see People v Till, 87 NY2d 835 [1995]; People v Montanez, 41 NY2d 53, 58 [1976]; see also People v James, 19 AD3d 616 [2005]; People v Gorham, 17 AD3d 858 [2005]; People v Melendez, 8 AD3d 680, supra; People v Gordon, 308 AD2d 461 [2003]; People v Bedi, 299 AD2d 556 [2002]; People v Wright, 288 AD2d 409 [2001]; People v Atkins, [*2]7 AD2d 393 [1959]). We note that the prejudicial effect was limited by the court's directive that the complainant could only testify concerning the nature of the relationship, but not as to any prior assaults by defendant.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see People v Gaimari, 176 NY 84, 94 [1903]). Its determination should be accorded
great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86, 88 [1974]). We find no basis to disturb the jury's determination.

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 13, 2006