People v. Filipe

540 Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered May 6, 2002, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s challenge to the admission of testimony regarding his and the complainant’s membership in a gang, of which the defendant was the leader, is without merit. This evidence was relevant on the issue of the defendant’s motive, and was necessary background to explain the relationship between the defendant and the complainant (see People v Newby, 291 AD2d 460 [2002]). Since the probative value of this testimony outweighed any prejudice to the defendant, the Supreme Court providently exercised its discretion in admitting it (id.; see also People v Carroll, 95 NY2d 375, 385 [2000]). The defendant contends that the prosecutor’s references to this testimony during summation constituted reversible error. The defendant failed to preserve this argument for appellate review, as he failed to object during the prosecutor’s summation (see CPL 470.05 [2]; see also People v Williams, 305 AD2d 703 [2003]). In any event, the challenged remarks either were fair comment on the evidence, permissive rhetorical comment, or responsive to the defense counsel’s summation (see People v Hoover, 298 AD2d 599 [2002]; see also People v Galloway, 54 NY2d 396 [1981]; People v Hines, 3 AD3d 580 [2004]). Santucci, J.P., Florio, Schmidt and Rivera, JJ., concur.