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FAILURE TO RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two judge dissenting opinion, determined defendant’s objection to a juror who spoke out during the about defense counsel’s repeated use of a racial slur was not preserved for appeal. Defense counsel did not make the specific objection relied upon on appeal and was silent when objections were made by another defense attorney. The court further held that references to gang structure in the prison where the assault occurred were admissible to show the defendant’s motive and intent to join the assault:

To preserve an issue of law for appellate review, “counsel must register an objection and apprise the court of grounds upon which the objection is based at the time’ of the allegedly erroneous ruling or at any subsequent time when the court had an opportunity of effectively changing the same'” … . * * *

We are unpersuaded, first, by defendant’s argument that because his counsel referred to Juror Six as “grossly unqualified,” he preserved his Buford claim that the trial court had to make an inquiry into the juror’s ability to be impartial. What defendant ignores is that counsel’s reference to Juror Six being grossly unqualified was raised solely in relation to his consistent position that the only way to protect defendant’s right to a fair and impartial jury was to grant the specific remedy of a mistrial. Counsel argued vigorously that Juror Six had irreversibly tainted the entire jury——a defect in the process that would require more than the discharge of a single juror … . That being the case, counsel’s failure to join another codefendant’s request for a Buford inquiry after the court denied the mistrial motion makes plain the singular course set by counsel. …

Defendant’s alternative argument, that he preserved the issue for appellate review by way of his codefendant’s objection, is similarly unpersuasive. The Court has, in a different context, rejected the proposition that an issue is preserved for appellate review, notwithstanding a defendant’s failure to expressly present the matter to the trial court, merely because another party or codefendant protested or objected. * * *

… [T]he testimony elicited by the People about the Bloods was probative of defendant’s motive and intent to join the assault on complainant, and provided necessary background information on the nature of the relationship between the codefendants, thus placing the charged conduct in context … . The testimony was intended to explain why defendant and one of the codefendants were quick to join in the fight, as well as the gang-related meaning of the words complainant alleged that the codefendant used during and after the attack. In fact, very little of the investigator’s testimony focused on sensational details about the Bloods. The testimony described how members are identified and briefly discussed how carrying out an act of violence on behalf of a member might allow another member to rise in the gang’s hierarchy. People v Bailey, 2018 NY Slip Op 04383, CtApp 6-14-18

CRIMINAL LAW (APPEALS, EVIDENCE, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/APPEALS (CRIMINAL LAW, FAILURE RAISE THE SPECIFIC OBJECTION ARGUED ON APPEAL AND FAILURE TO SPECIFICALLY JOIN IN AN OBJECTION BY CO-COUNSEL RENDERED THE OBJECTIONS UNPRESERVED FOR APPEAL, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/EVIDENCE (CRIMNAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))/GANGS (CRIMINAL LAW, EVIDENCE OF GANG STRUCTURE PROPERLY ADMITTED TO SHOW DEFENDANT’S MOTIVE AND INTENT, AND TO PROVIDE BACKGROUND INFORMATION (CT APP))

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