A Manhattan trial judge was wrong to admit evidence establishing the gang affiliation of a man convicted for attempted murder, but an appeals panel has ruled the admission was harmless due to other evidence of his guilt. Jason Pagan was convicted in 2009 on charges of attempted murder, assault and second-degree criminal possession of a weapon stemming from the 2008 shooting of a bouncer during a fight outside a Lower East Side bar. Mr. Pagan argued his due process rights had been violated when Supreme Court Justice Marcy L. Kahn permitted the admission of two taped phone calls, one in which Mr. Pagan said he had been a Latin Kings member for the past four years, and the other in which he claimed he could take care of his aunt’s boyfriend’s problem with someone because Mr. Pagan was “trying to get some status.”
Though Justice Kahn said the calls would shed light on part of the motive and intent, the Appellate Division, First Department, last week agreed unanimously with Mr. Pagan that the conversations lacked probative value. Justice Sheila Abdus-Salaam, writing for the panel, said the inclusion of the calls was not needed because the jurors could have determined Mr. Pagan acted the way he did from the circumstances of the crime. She said the jury could have decided Mr. Pagan was angry with the bouncer or possibly meant to shoot someone else when the bouncer took the bullet. Nevertheless, Justice Kahn’s misstep was harmless because of other evidence of Mr. Pagan’s guilt, such as a faulty alibi defense and his incriminating statements during the probe. “We do not see any likelihood that the jury would have acquitted defendant if it had not heard the improperly admitted conversations,” Justice Abdus-Salaam wrote in People v. Pagan, 5035.
