| People v Cosme |
| 2012 NY Slip Op 06972 [99 AD3d 940] |
| October 17, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Rafael Cosme, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel,Anthea H. Bruffee, and Shannon Hanson [Clifford Chance US, LLP], of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.),rendered February 4, 2010, convicting him of robbery in the first degree, upon a jury verdict, andimposing sentence upon his adjudication as a second violent felony offender.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the defendant's adjudication as a second violent felony offender and the sentenceimposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to theSupreme Court, Kings County for resentencing in accordance herewith.
The defendant's challenge to the trial court's Sandoval ruling (see People vSandoval, 34 NY2d 371 [1974]) is without merit. The defendant failed to meet his burden ofdemonstrating that the prejudicial effect of cross-examination regarding certain prior convictionsso outweighed the probative worth of that evidence that exclusion was warranted (see id.at 378; People v Harris, 74AD3d 984, 984-985 [2010]). The trial court's "Sandoval compromise" (People v Smith, 18 NY3d 588,597-599 [2012] [Pigott, J., concurring]), therefore, was not an improvident exercise of discretion(see People v Harris, 74 AD3d at 984-985; People v White, 60 AD3d 1095, 1096 [2009]).
The defendant's claim of error regarding the trial court's handling of a jury note, raised in hispro se supplemental brief, does not constitute a mode of proceedings error (see People vStarling, 85 NY2d 509, 516 [1995]), and therefore requires preservation as a question of law(see CPL 470.05 [2]; People vGerrara, 88 AD3d 811, 812-813 [2011]; cf. People v O'Rama, 78 NY2d 270[1991]). The defendant failed to preserve his claim for appellate review (see People vGerrara, 88 AD3d at 813), and we decline to review it in the exercise of our interest ofjustice jurisdiction (id.).
As the People correctly concede, the defendant's prior conviction under the federal bankrobbery statute (see 18 USC § 2113), does not constitute a predicate violent felonyconviction (see Penal Law § 70.04 [1] [b] [i]; People v Walker, 185 AD2d951, 952 [1992]; People v Sellers, 168 AD2d 583, 583-584 [1990]). Although thedefendant did not preserve for appellate review his contention that he [*2]was improperly adjudicated as a second violent felony offenderbased upon that federal conviction, we review his present claim as a matter of discretion in theinterest of justice (see People vHorvath, 81 AD3d 850, 851 [2011]). In so doing, we vacate the defendant's adjudicationas a second violent felony offender and the sentence imposed thereon, and remit the matter forresentencing (see id.; Penal Law § 70.06 [1] [b] [i]). Dillon, J.P., Balkin, Austinand Cohen, JJ., concur.