| People v Alston |
| 2010 NY Slip Op 01806 [71 AD3d 684] |
| March 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamalAlston, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin,J.), rendered December 4, 2008, convicting him of robbery in the second degree (two counts) andcriminal possession of stolen property in the fifth degree, upon a jury verdict, and sentencinghim to a determinate term of imprisonment of 10 years on each count of robbery in the seconddegree, and one year for criminal possession of stolen property in the fifth degree, with fiveyears of postrelease supervision, to be served concurrently with each other, and consecutively tosentences the defendant received in Nassau County for his convictions on related offenses.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by reducing the sentences for each count of robbery in the second degree todeterminate terms of four years imprisonment, to be served concurrently with each other andconcurrently with the sentences the defendant received in Nassau County for his convictions onrelated offenses.
The defendant took part in two robberies, one in Queens and another in Nassau County, inwhich he was the getaway driver while three others used a BB gun to steal iPods and cell phonesfrom two victims. The defendant gave a statement to police in which he admitted hisinvolvement in the robberies. The defendant signed a grand jury waiver, and the prosecutorasked him about both the Queens robbery and the Nassau robbery in front of the grand jury. TheSupreme Court denied the defendant's motion to dismiss the indictment on the ground that theprosecutor should not have introduced the evidence of the Nassau robbery before the grand juryin Queens.
At trial, one of the men arrested with the defendant, Walter Greene, took the stand andimmediately invoked his privilege against self-incrimination pursuant to the Fifth Amendment ofthe United States Constitution. After some discussion, the prosecutor began asking Greenepreliminary questions, and he answered them. Greene's attorney then stopped the questioningand moved to suspend the testimony until the next day. The following day, Greene's attorneystated that he had conferred with his client, and advised him to assert his Fifth Amendmentprivilege, and that Greene had no intention of testifying. The Supreme Court denied the motionof the defendant's attorney for a mistrial, but struck Greene's testimony, [*2]issued a curative instruction, and precluded the attorneys fromdiscussing Greene's testimony in their summations.
The jury convicted the defendant of robbery in the second degree (two counts), and criminalpossession of stolen property in the fifth degree. On December 4, 2008, the court sentenced thedefendant, as a first-time offender, to determinate terms of imprisonment of 10 years for eachcount of robbery in the second degree, and one year for criminal possession of stolen property inthe fifth degree, to be served concurrently with each other, and consecutively to sentences thedefendant received in Nassau County for his conviction on related offenses. On appeal, thedefendant contests both the convictions and the sentence.
"[A] witness's invocation of the Fifth Amendment privilege may amount to reversible errorin two instances: one, when the prosecution attempts to build its case on inferences drawn fromthe witness's assertion of the privilege, and two, when the inferences unfairly prejudicedefendant by adding 'critical weight' to the prosecution's case in a form not subject tocross-examination" (People v Vargas, 86 NY2d 215, 221 [1995], citing Namet vUnited States, 373 US 179, 186-187 [1963]; People v Berg, 59 NY2d 294, 298[1983]). "Absent a conscious and flagrant attempt by the prosecutor to build a case out of theinferences arising from the use of the testimonial privilege or without some indication that thewitness's refusal to testify adds critical weight to the People's case in a form not subject tocross-examination, reversal is not warranted" (People v Jones, 138 AD2d 405, 406[1988]). Under these circumstances, Greene's invocation of the Fifth Amendment privilegeagainst self-incrimination did not add critical weight to the prosecution's case, and the defendantwas not deprived of his right to a fair trial by Greene's testimony (see People v Berg, 59NY2d 294, 298 [1983]; People v Rivera, 205 AD2d 563 [1994]; cf. People vAnderson, 123 AD2d 770, 774-775 [1986]).
The defendant's contention that the People deprived him of a meaningful opportunity totestify before the grand jury by failing to accept his limited grand jury waiver is unpreserved forappellate review, as the defendant failed to make this specific argument before the SupremeCourt (see CPL 470.05 [2]). In any event, although "a prospective defendant who electsto testify before the Grand Jury does not waive the privilege against self-incrimination as tocredibility questioning regarding unrelated pending charges" (People v Smith, 87 NY2d715, 721 [1996]; see generally CPL 190.50 [5] [a]), the Nassau County charges wererelated, and the prosecutor properly questioned the defendant about them before the grand jury(see People v Colon, 306 AD2d 213, 214 [2003]; cf. People v Jorge, 172 Misc2d 795, 796 [1997]).
The defendant's sentence for each count of robbery in the second degree was excessive andis reduced to a determinate term of four years on each count.
Moreover, the court erred in finding that it did not have the authority to direct that thedefendant's Queens sentence run concurrently with his Nassau sentence. Indeed, the court hadthe authority to direct that the sentences run either concurrently or consecutively (seePenal Law § 70.25 [1]; Matter ofMurray v Goord, 1 NY3d 29, 31 [2003]; People v Gonzalez, 199 AD2d 65[1993]). Considering the factors discussed above, we conclude that the court should havedirected that the sentences run concurrently.
The defendant's contention, raised at point IV of his brief, is without merit. The defendant'sremaining contention, raised at point III of his brief, is unpreserved for appellate review and, inany event, is without merit. Rivera, J.P., Leventhal, Lott and Austin, JJ., concur. [Prior CaseHistory: 21 Misc 3d 1133(A), 2008 NY Slip Op 52333(U).]