| People v Mateo |
| 2012 NY Slip Op 09095 [101 AD3d 1458] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Mateo,Appellant. |
—[*1] Anna Remet, Special Prosecutor, Kingston, for respondent.
Rose, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedApril 20, 2009, upon a verdict convicting defendant of the crime of assault in the second degree.
Defendant was charged with two counts of burglary in the first degree, burglary in the seconddegree, robbery in the first degree, three counts of robbery in the second degree and two counts ofassault in the second degree in connection with an alleged home invasion. Defendant did notdeny being present at the scene, but contended that he merely gave his friend, Joseph Buckler, aride as a favor and waited outside the home while Buckler had a conversation with one of theresidents, Maxine Stein. Defendant testified that he only became involved after Buckler and Steinstarted pushing each other and Stein's husband, Alan Levinson, charged Buckler with a billyclub. Levinson and Stein testified that, upon arriving at their rural, secluded home, Buckler anddefendant immediately attacked them, restrained them with duct tape, ransacked parts of theirhouse and stole money they kept in their freezer. After a jury trial, defendant was acquitted of allcharges except for one count of assault in the second degree. He was sentenced, as a persistentfelony offender, to a term of 15 years to life in prison. He now appeals, and we affirm.
Although defendant contends that the verdict was against the weight of the evidence becauseLevinson and Stein were unworthy of belief, the inconsistencies in their description of the eventswere fully explored at trial and do not render their testimony incredible as a matter of [*2]law (seePeople v Kruppenbacher, 81 AD3d 1169, 1174 [2011], lv denied 17 NY3d 797[2011]; People v Richards, 78AD3d 1221, 1224 [2010], lv denied 15 NY3d 955 [2010]). Further, while the juryapparently credited defendant's testimony that he did not intend to burglarize or rob the residenceand did not know that Buckler had intended to do so, they were nevertheless free to discreditother portions of his testimony (seePeople v Battease, 3 AD3d 601, 602 [2004]). Defendant admitted that he twice struckLevinson in the head with a billy club, but argued that he was justified in doing so becauseLevinson attacked him with it first. County Court duly instructed the jury on the justificationdefense, and Stein and Levinson presented a starkly different version of events. Viewing theevidence in a neutral light and according appropriate deference to the jury's ability to view thewitnesses and determine credibility (see People v Bleakley, 69 NY2d 490, 495 [1987]),we find no basis to disturb the verdict as against the weight of the evidence (see People v Terry, 85 AD3d1485, 1487 [2011], lv denied 17 NY3d 862 [2011]; People v Gonzalez, 64 AD3d1038, 1041-1042 [2009], lv denied 13 NY3d 796 [2009]; People v Howard,299 AD2d 647, 648 [2002], lv denied 99 NY2d 629 [2003]).
Defendant also contends that it was error to exclude his wife's proffered testimony thatBuckler had stated, in her presence, that he needed a ride to the Levinson residence to collect adebt. While we agree that the proposed testimony was admissible because defendant was notseeking to introduce it for its truth (seePeople v Johnson, 79 AD3d 1264, 1266-1267 [2010], lv denied 16 NY3d 832[2011]; People v Howard, 299 AD2d at 648; People v Bruner, 222 AD2d 738,739 [1995], lv denied 88 NY2d 981 [1996]), its exclusion was harmless since it wouldonly have been relevant to the burglary and robbery charges on which defendant was acquitted.As for the related claim that the special prosecutor should have been disqualified based on hisprior representation of defendant's wife in an unrelated criminal matter, he offered no evidencethat the special prosecutor had any prior connection to him or that the prior representation of hiswife provided the prosecutor with any information relevant to this matter. Accordingly,defendant established no actual prejudice related to the special prosecutor's prior representationof his wife so as to require disqualification (see People v English, 88 NY2d 30, 33-34[1996]; People v Zinkhen, 89 AD3d1320, 1321 [2011], lv denied 18 NY3d 964 [2012]).
Nor are we persuaded by defendant's claim that he was denied a fair trial by the specialprosecutor's misconduct. The prosecutor's questioning of defendant with respect to his priorrecord was in conformance with the Sandoval ruling and an appropriate follow-up onissues raised by defendant on his direct examination. During the summation, the prosecutor madefair comment on the evidence, responded to the arguments raised by defendant and did not serveas an unsworn witness. To the extent that the prosecutor improperly read a redacted portion ofLevinson's medical records aloud, defendant's objection was sustained and County Courtimmediately directed the jury to disregard it. Accordingly, we conclude that the prosecutor'sconduct "was not pervasive or flagrant so as to impede defendant's right to a fair trial" (People v Blair, 32 AD3d 613, 614[2006]; see People v White, 79AD3d 1460, 1464 [2010], lv denied 17 NY3d 791, 803 [2011]), and any error washarmless in the overall context of this trial (see People v Wallender, 27 AD3d 955, 959-960 [2006]).
Defendant's procedural challenge to the timing of his persistent felony offender hearing isunpreserved and, in any event, without merit because he ultimately received considerably morenotice than the statute provides and there was substantial compliance with the statute's otherprovisions as well (see CPL 400.20 [3]; People v Hargroves, 27 AD3d 765, 765 [2006], lv denied 7NY3d 789 [2006]; People v Elliot, 283 AD2d 183, 184 [2001], lv denied 96NY2d 901 [2001]). Also, County Court properly relied on defendant's extensive criminal historyand his [*3]own testimony in determining whether to sentencehim as a persistent felony offender (seePeople v O'Connor, 6 AD3d 738, 740-741 [2004], lv denied 3 NY3d 639, 645[2004]). Finally, defendant's claims that his counsel was ineffective and the persistent felonyoffender statute is unconstitutional are meritless, and his remaining contentions raised in his prose brief are unpreserved. Were we to review them in any event, we would find them to be withoutmerit as well.
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.