People v. Johnson , 149 A.D.2d 930 ( 1989 )

— Judgment affirmed. Memorandum: Defendant was convicted of attempted murder in the second degree and related offenses for shooting Raymond Harper three times with a handgun. On appeal, defendant contends that the trial court erred in admitting testimony from several witnesses about prior bad acts, assaults and other misconduct directed by defendant and his siblings against Montey Harper, the victim’s brother. We disagree.

The People’s theory at trial was that the intended victim of the assault was Montey Harper, the victim’s brother. In support of this theory the People presented evidence that the Harper brothers looked very much alike and that Raymond was using Montey’s car on the night of the shooting. Several witnesses, including Montey Harper, testified about the bitterness that existed between him and members of defendant’s family. Evidence of prior uncharged crimes may be received if it helps to establish, some element of the crime under consideration or is relevant because of some recognized exception to the general rule (see, People v Alvino, 71 NY2d 233, 241-242; People v Molineux, 168 NY 264, 293). The evidence regarding the conduct of defendant’s siblings, under the particular and unusual circumstances of this case, is directly related to motive because it is " 'inextricably interwoven’ with directly related material in the sense that it is 'explanatory of the acts done or words used in the otherwise admissible part of the evidence’ ” (People v Ely, 68 NY2d 520, 529, quoting People v Ventimiglia, 52 NY2d 350, 361) and its probative worth exceeded its potential for prejudice (see, People v Hudy, 73 NY2d 40; People v Ely, supra, at 529). Where, as here, the People’s case is based upon circumstantial evidence, " 'motive often becomes not only material but controlling’ ” (People v Moore, 42 NY2d 421, 428, cert denied 434 US 987, quoting People v Fitzgerald, 156 NY 253, 258).

Moreover, with respect to this evidence, defendant neither requested ''a limiting instruction nor excepted to the charge as given” (People v Williams, 50 NY2d 996, 998; see also, People v Ingram, 67 NY2d 897; People v Bailey, 133 AD2d 462, 463, lv denied 71 NY2d 892), and on this record the charge as given was not so deficient in this regard as to be equivalent to no charge at all and thus require reversal even though no exception was taken (People v Williams, at 998).

We have reviewed defendant’s remaining contentions and find them to be lacking in merit.

All concur, except Pine, J., who dissents and votes to reverse, in the following memorandum.