| People v Arguinzoni |
| 2008 NY Slip Op 01204 [48 AD3d 1239] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ramon D.Arguinzoni, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedDecember 6, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the firstdegree, robbery in the second degree, and criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofrobbery in the first degree (Penal Law § 160.15 [4]), robbery in the second degree (§160.10 [1]), and criminal possession of a weapon in the second degree (former § 265.03[2]) arising from his participation in the robbery of a gas station as the driver of the getawayvehicle. Contrary to the contention of defendant, County Court properly allowed the People tointroduce evidence with respect to his prior bad acts, including his threat to one of the People'switnesses and his involvement as an accomplice in an uncharged burglary. The evidence ofdefendant's threat was admissible on the issue of consciousness of guilt (see People vHendricks [appeal No. 1], 4 AD3d 798 [2004], lv denied 2 NY3d 800 [2004];People v Pugh, 236 AD2d 810, 812 [1997], lv denied 89 NY2d 1099 [1997]), andthe evidence of defendant's involvement in the uncharged burglary was properly admitted underthe intent exception to the Molineux rule (see People v Molineux, 168 NY 264,293-294 [1901]). Indeed, defendant placed his intent and state of mind in issue at trial based onthe theory of his defense, i.e., that he did not know that his accomplice intended to commit thecrimes with which defendant was charged (see People v Ingram, 71 NY2d 474, 479[1988]).
Defendant failed to preserve for our review his contention that the court'sSandoval ruling constituted an abuse of discretion (see People v Englert, 285AD2d 987 [2001], lv denied 97 NY2d 655 [2001]) and, in any event, that contentionlacks merit. The court properly exercised its discretion in permitting the People to cross-examinedefendant with respect to his 2004 conviction of attempted robbery in the second degree. Despitethe similarity between the prior conviction and the instant charges, "[p]roof of willingness tosteal has been specifically recognized as very material proof of lack of credibility. . . and crimes of individual dishonesty should usually be admitted on trial ofanother similar charge, notwithstanding the risk of possible prejudice, because the very issue onwhich the offer is made is that of the veracity of the defendant as a [*2]witness in the case" (People v Freeney, 291 AD2d 913, 914[2002], lv denied 98 NY2d 637 [2002] [internal quotation marks omitted]; see Peoplev Nichols, 302 AD2d 953 [2003], lv denied 99 NY2d 657 [2003]; People vWillis, 282 AD2d 882, 883 [2001], lv denied 96 NY2d 869 [2001]). Defendant alsofailed to preserve for our review his contention that the police lacked reasonable suspicion tostop the vehicle that he was driving following the robbery (see People v Sanders, 224AD2d 956 [1996], lv denied 88 NY2d 885 [1996]) and, in any event, that contentionlacks merit. The vehicle that defendant was driving matched the description of the vehicleobserved leaving the scene of the robbery, defendant was driving in the vicinity of the robbery,and the vehicle's license plate was obstructed by packed snow (see People v Hicks, 116AD2d 150, 154 [1986], affd 68 NY2d 234 [1986]; People v Sanchez, 216 AD2d207, 208 [1995], lv denied 87 NY2d 850 [1995]).The court properly denied defendant's challenge for cause to a prospective juror based on theprospective juror's inability to read and write. The Judiciary Law requires in relevant part that ajuror must "[b]e able to understand and communicate in the English language" (Judiciary Law§ 510 [4]; see CPL 270.20 [1] [a]), but there is no requirement for reading andwriting skills. Even assuming, arguendo, that the court erred in denying defendant's challenge forcause, we conclude that the error does not require reversal because defendant had not exhaustedhis peremptory challenges and did not peremptorily challenge that prospective juror (seeCPL 270.20 [2]). Defendant further contends that the court erred in allowing other jurors toauthor notes for the prospective juror in question, who was designated as the jury forepersonpursuant to CPL 270.15 (3). We reject that contention. The record establishes that the notes wereinitialed by the foreperson, and it cannot be said that defendant was prejudiced by that procedureinasmuch as "the law recognizes no special function for a foreperson other than acting as thejury's spokesperson" (People v Burgess, 280 AD2d 264, 265 [2001], lv denied 96NY2d 798 [2001]).
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]).Contrary to defendant's further contention, the court properly gave an Allen charge afterthe jury had deliberated for a total of five hours over a period of two days and had sent a note tothe court asking whether its inability to reach a unanimous verdict on one of the charges renderedit a deadlocked jury (see People v Garner, 272 AD2d 873 [2000], lv denied 95NY2d 852 [2000]; see also People v Phong T. Le, 277 AD2d 1036, 1036-1037 [2000],lv denied 96 NY2d 762 [2001]). Also contrary to defendant's contention, the court'sAllen charge, which tracked the language of CJI2d(NY) Deadlocked Jury, did not compelor coerce the jury to reach a verdict and sufficiently apprised the jury of its option not to reach aunanimous verdict (see People vBaker, 21 AD3d 1435, 1436 [2005], lv denied 6 NY3d 773 [2006]; Phong T.Le, 277 AD2d at 1037; People v Samuels, 251 AD2d 1038 [1998], lv denied92 NY2d 905 [1998]). The sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Centra, Fahey, Peradotto and Pine, JJ.