| People v Nunez |
| 2018 NY Slip Op 02686 [160 AD3d 1225] |
| April 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gilberto A. Nunez, Appellant. |
Miedel & Mysliwiec LLP, New York City (Florian Miedel of counsel), forappellant.
David M. Hoovler, District Attorney, Goshen (Robert H. Middlemiss of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 7, 2017, upon a verdict convicting defendant of the crimes of grand larceny inthe third degree, insurance fraud in the third degree and falsifying business records in the firstdegree (five counts).
Defendant was charged by indictment with grand larceny in the third degree, insurance fraudin the third degree and five counts of falsifying business records in the first degree stemmingfrom allegations that he fraudulently obtained monetary proceeds from a business owner'sinsurance policy. Following a jury trial, defendant was convicted as charged and sentenced to anaggregate prison term of 1 to 3 years, to be served consecutively to the 1
[*2] By failing to object to County Court's Sandovalruling prior to the close of the Sandoval hearing, defendant did not preserve his presentchallenge to that ruling for our review (see People v Stacconi, 151 AD3d 1395, 1397 [2017]; People v Ramos, 129 AD3d 1205,1207 [2015], lv denied 26 NY3d 971 [2015]; People v Burch, 97 AD3d 987, 990 [2012], lv denied 19NY3d 1101 [2012]). Were we to consider the issue, we would find it to be without merit. Theprior convictions at issue were recent, not too similar to the charged crimes and were probative ofdefendant's credibility and willingness to place his own interests above those of society (see People v Capers, 129 AD3d1313, 1317 [2015], lv denied 27 NY3d 994 [2016]; People v Rockwell, 18 AD3d 969,970-971 [2005], lv denied 5 NY3d 768 [2005]; People v Perry, 221 AD2d 736,737-738 [1995], lv denied 87 NY2d 1023 [1996]). Further, County Court properlyprecluded any mention of the underlying facts in order to minimize any undue prejudice.Inasmuch as County Court appropriately balanced the probative value of the prior convictionsagainst the risk of prejudice to defendant, we would find no abuse of discretion in itsSandoval ruling (see People vKeener, 152 AD3d 1073, 1074 [2017]; People v Cooley, 149 AD3d 1268, 1270-1271 [2017], lvdenied 30 NY3d 979 [2017]).
Similarly unpreserved for our review is defendant's assertion that, in imposing the sentence,County Court improperly considered the murder charge of which he had been acquitted followinga separate jury trial just months earlier (see CPL 470.05 [2]; People v Hooks, 148 AD3d 930,931-932 [2017], lv denied 29 NY3d 1081 [2017]; People v Guerrero, 129 AD3d 1102, 1103 [2015], lv denied26 NY3d 968 [2015]). In any event, the court twice confirmed at sentencing that it would notconsider the murder victim's death in determining defendant's sentence. Instead, County Courtexpressly stated that the sentence imposed was based on defendant's deceptive and fraudulentconduct, as well as his lack of remorse. Viewing County Court's comments as a whole, we wouldfind that "[t]he court did not base its sentence on a crime of which defendant had been acquitted,but rather sentenced him based on all the relevant facts and circumstances surrounding thecrime[s] of which he was convicted" (People v Lipford, 129 AD3d 1528, 1531 [2015] [internal quotationmarks, ellipsis and citation omitted], lv denied 26 NY3d 1041 [2015]; see People v Coleman, 151 AD3d1385, 1388-1389 [2017], lv denied 29 NY3d 1125 [2017]; People v Douglass, 115 AD3d1055, 1057-1058 [2014]; People v Neish, 232 AD2d 744, 747 [1996], lvdenied 89 NY2d 927 [1996]; People v La Veglia, 215 AD2d 836, 837 [1995]).
Finally, we are unpersuaded by defendant's contention that his sentence is harsh andexcessive. Defendant received the minimum sentence allowable for these crimes (seePenal Law § 70.00 [2] [d], [e]) and it was certainly within County Court's discretionto direct that this sentence run consecutively to that imposed upon defendant's unrelatedconvictions (see Penal Law § 70.25 [1]). Based upon our review of therecord and after consideration of all relevant factors, we perceive neither an abuse of discretionnor any extraordinary circumstances warranting a modification of the consecutive sentenceimposed (see People v March, 122AD3d 1001, 1003 [2014]; People v Douglass, 115 AD3d at 1057-1058; People vStumbrice, 194 AD2d 931, 932 [1993], lv denied 82 NY2d 727 [1993]).
Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:During the combined sentencingproceeding in which those sentences were imposed, defendant was also sentenced to a concurrentterm of one year in jail upon his conviction of two counts of criminal possession of a forgedinstrument in the second degree (People v Nunez, 160 AD3d 1221 [2018] [decided herewith]).