| People v Jones |
| 2010 NY Slip Op 01551 [70 AD3d 1253] |
| February 25, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Maceo W.Jones, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.),rendered June 17, 2008, upon a verdict convicting defendant of the crimes of robbery in the thirddegree, grand larceny in the fourth degree and petit larceny (two counts).
Defendant's convictions stem from his theft of a total of $160 from Noelle Ryan (hereinafterthe wife) and Patrick Ryan (hereinafter the husband). We find no merit to defendant's contentionthat the conviction of robbery in the third degree was against the weight of the evidence becausethe credible evidence did not establish that he used, or threatened to use, force (see PenalLaw § 160.05). It is uncontroverted that defendant approached the wife at the residenceshe shared with the husband and asked to borrow $43. The wife ultimately loaned defendant $60,which he promised to repay that evening. When defendant returned that evening, he indicatedthat his uncle was waiting in the car with the money, but that he needed change for a $100 bill.The husband testified that he became suspicious and decided to accompany defendant to his carwith the five $20 bills he intended to partially exchange for the $100 bill. Upon doing so, heobserved that defendant's car was empty and he confronted defendant as to whether he wasattempting to trick him. According to the husband, defendant then attempted to grab the moneyfrom his hand. During the struggle that ensued, the husband tripped and, as the husband wasfalling backward, defendant grabbed the money from his hand.[*2]
Although defendant did not testify at trial, his version ofthe incident was conveyed to the jury by reading into the record portions of his grand jurytestimony. The only material difference between the husband's version and defendant's versionwas defendant's denial that he used any force in attempting to take the money from the husband.Specifically, defendant alleged that, after the husband accused defendant of trying to trick himand fell, the husband dropped the money on the ground and defendant picked it up. Where ashere, a different finding would not have been unreasonable, we must, "like the trier of factbelow, 'weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]). Viewing the evidence in a neutral light, and according deference to the jury's credibilitydeterminations, we are satisfied that the verdict is supported by the weight of the credibleevidence (see People v Bleakley, 69 NY2d at 495).
We discern no error in County Court's Sandoval ruling. " 'The determination as towhich prior convictions . . . can be inquired about and the extent of such inquiryrests primarily within the discretion of the trial court' " (People v Caston, 60 AD3d 1147,1148 [2009], quoting People v Adams, 39 AD3d 1081, 1082 [2007], lv denied 9NY3d 872 [2007]; see People v Moore, 59 AD3d 809, 811 [2009]; People vLemke, 58 AD3d 1078, 1078-1079 [2009]). There are no per se rules that require preclusionof prior convictions due to their age, nature or number; rather, these factors are matters ofsubstance that the trial court may properly consider (see People v Walker, 83 NY2d 455,459 [1994]; People v Pollock, 50 NY2d 547, 550 [1980]).
Here, defendant's 34-year criminal history included, among other crimes, petit larcenies,robbery and burglary. These convictions were significant, as they represent "[p]roof ofwillingness to steal [that] has been specifically recognized as very material proof of lack ofcredibility" by this Court (People v Moore, 82 AD2d 972, 972 [1981]; see People vCollins, 56 AD3d 809, 810 [2008], lv denied 11 NY3d 923 [2009]; People vWillis, 282 AD2d 882, 883 [2001], lv denied 96 NY2d 869 [2001]). In this case,County Court specifically took into account that defendant was the only witness who couldtestify on his own behalf and appropriately determined that "his credibility and, in turn, his priorconvictions were of particular import" (People v Willis, 282 AD2d at 883; see Peoplev Beverly, 6 AD3d 874, 876 [2004], lv denied 3 NY3d 637 [2004]; People vKelly, 270 AD2d 511, 513 [2000], lv denied 95 NY2d 854 [2000]). However, thecourt also balanced the importance of allowing the People to impeach defendant's credibilityagainst any unfair prejudice to defendant by limiting the permissible scope of the People'scross-examination to the classification of each crime and precluding inquiry into the underlyingdetails thereof. We find on the record before us that County Court "carefully and properlyexercised its discretion in making this ruling" (People v Hogencamp, 295 AD2d 643,644 [2002], lv denied 98 NY2d 697 [2002]).
We are also unpersuaded by defendant's contention that County Court erred in allowing theprosecutor and the husband to demonstrate for the jury the interaction between defendant and thehusband during the incident giving rise to the charges. Although the conditions under which thecourtroom demonstration was presented could not precisely duplicate the actual conditions inwhich the incident occurred, they were " 'sufficiently similar to those existing at the time inquestion to make the result achieved by the test relevant to the issue' " (People v Estrada,109 AD2d 977, 978-979 [1985], quoting Prince, Richardson on Evidence § 199, at 174[10th ed]; see People v Acevedo, 40 NY2d 701, 704 [1976]). Moreover, County Courtacknowledged the relevant discrepancies in open court and emphasized them in both thepreliminary jury [*3]instructions and the jury charge. Under thecircumstances here, we find no abuse of County Court's discretion in concluding that theprobative value of the demonstrative evidence outweighed its potential for prejudice (seegenerally People v Acevedo, 40 NY2d at 704-706; People v Boone, 176 AD2d1085, 1086 [1991], lv denied 79 NY2d 853 [1992]; People v Estrada, 109 AD2dat 977).
Next, defendant asserts that County Court erroneously gave the jury an interested witnesscharge on the basis that "the defendant testified in this case through the reading of his grand jurytestimony." Although we agree that such a charge was improper inasmuch as the jury was notgranted an opportunity to evaluate defendant's demeanor on the witness stand (see 1Charges to the Jury and Requests to Charge in a Criminal Case in New York § 6:13;see generally People v Studstill, 27 AD3d 833 [2006], lv denied 6 NY3d 898[2006]), such error was harmless because " 'there is [no] significant probability . . .that the jury would have acquitted the defendant had it not been for the error' " (People vCarkner, 213 AD2d 735, 738 [1995], lvs denied 85 NY2d 970, 86 NY2d 733 [1995],quoting People v Crimmins, 36 NY2d 230, 242 [1975]; see People v Towsley,53 AD3d 1083, 1084 [2008], lv denied 11 NY3d 795 [2008]; People vStrawbridge, 299 AD2d 584, 590 [2002], lvs denied 99 NY2d 632, 100 NY2d 599[2003]).
Defendant's contention that he did not receive the effective assistance of counsel distills totwo arguments, neither of which has merit. First, defendant complains that his counsel failed tomove for dismissal of the indictment on the ground that the integrity of the grand juryproceeding was impaired due to defendant's appearance in prison attire. However, defendantdoes not allege and "the record does not support the contention that defendant was compelled towear prison clothing" (People v Walker, 259 AD2d 1026, 1027 [1999], lv denied93 NY2d 1029 [1999]). In any event, the record reflects that defendant's counsel did file amotion to dismiss the indictment, drawing specific attention to the adequacy and appropriatenessof the instructions the People gave to the grand jury regarding defendant's mode of dress (whichcounsel referred to as a jail jumpsuit).
Defendant further argues that he was deprived of the effective assistance of appellate counselinasmuch as assigned appellate counsel—who also represented him at trial—has aconflict of interest because it is in counsel's self interest to protect himself from an ineffectiveassistance of counsel claim. We disagree. Appellate counsel has displayed " 'a competent graspof the facts, the law and appellate procedure, supported by appropriate authority and argument' "(People v Borrell, 12 NY3d 365, 368 [2009], quoting People v Stultz, 2 NY3d277, 285 [2004]; see People v Baldi, 54 NY2d 137, 146 [1981]). Under the totality of thecircumstances and being mindful that we "must avoid confusing 'true ineffectiveness with merelosing tactics and according undue significance to retrospective analysis' " (People vBenevento, 91 NY2d 708, 712 [1998], quoting People v Baldi, 54 NY2d at 146), wefind that defendant received meaningful representation at both the trial and appellate levels(see People v Benevento, 91 NY2d at 712; People v Lopez-Aguilar, 64 AD3d1037, 1038 [2009]; People v Carralero, 9 AD3d 790, 791 [2004], lv denied 4NY3d 742 [2004]).
Cardona, P.J., Peters, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.