| People v Hammond |
| 2011 NY Slip Op 03760 [84 AD3d 1726] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DialloHammond, Appellant. |
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Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered June 9, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree, robbery in the second degree, and criminal possession of stolen property in the fifthdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of robbery inthe first degree (Penal Law § 160.15 [4]), robbery in the second degree (§ 160.10[1]), and criminal possession of stolen property in the fifth degree (§ 165.40), defendantcontends that reversal is required inasmuch as he proved the affirmative defense of duresspursuant to Penal Law § 40.00 (1) as a matter of law. Although the People are incorrectthat defendant failed to preserve his contention for our review (see People v Gray, 86NY2d 10, 19 [1995]; People v Bastidas, 67 NY2d 1006, 1007 [1986], reargdenied 68 NY2d 907 [1986]), we nevertheless conclude that defendant's contention lacksmerit. The jury was entitled to discredit defendant's self-serving statements that he was coercedinto committing the crimes of which he was convicted (see People v McKinnon, 78 AD3d 864 [2010], lv denied 16NY3d 744 [2011]) and, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the jury's rejection of that defense is not againstthe weight of the evidence (see id.; People v Zilberman, 297 AD2d 517, 518[2002], lv denied 99 NY2d 566 [2002]; see generally People v Bleakley, 69NY2d 490, 495 [1987]).
We reject the further contention of defendant that Supreme Court's Sandoval rulingconstitutes an abuse of discretion. The similarity between the prior convictions and the instantcrimes does not by itself preclude cross-examination concerning those prior convictions (seePeople v Hayes, 97 NY2d 203, 206 [2002]), and here the prior convictions either concerndefendant's credibility or are indicative of his willingness to place his own interests above thoseof society (see People v Arguinzoni,48 AD3d 1239, 1240-1241 [2008], lv denied 10 NY3d 859 [2008]; People vRupnarain, 299 AD2d 498 [2002], lv denied 99 NY2d 619 [2003]; People vFreeney, 291 AD2d 913, 914 [2002], lv denied 98 NY2d 637 [2002]).[*2]
Defendant correctly concedes that he failed to preservefor our review his contention with respect to alleged prosecutorial misconduct (see CPL470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Additionally, we reject defendant's contentionthat the court committed reversible error based on the manner in which it responded to two jurynotes (see generally People v O'Rama, 78 NY2d 270, 277-278 [1991]). Finally, thesentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto, Carni, Sconiersand Green, JJ.