| People v Rodriguez |
| 2013 NY Slip Op 07754 [111 AD3d 856] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Juan Rodriguez, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Jennifer Spencer, Steven A.Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered October 18, 2010, convicting him of assault in the seconddegree, harassment in the second degree, and trespass, after a nonjury trial, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification testimony. The evidence presented at thesuppression hearing established that the subject witness was very familiar with thedefendant before the witness was asked to identify the defendant in a photo array, andthat the identification was merely confirmatory (see People v Rodriguez, 79NY2d 445 [1992]).
Contrary to the People's contention, the defendant's contention that his conviction ofassault in the second degree (see Penal Law § 120.05 [1]) was notsupported by legally sufficient evidence is preserved for appellate review (seeCPL 470.05 [2]). Viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to disprove the defendant's justification defense and to establish the defendant'sguilt of assault in the second degree beyond a reasonable doubt (see People v King, 85 AD3d820 [2011]; People vMcDaniel, 84 AD3d 1410 [2011]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence pursuant to CPL 470.15(5), we nevertheless accord great deference to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). "[T]he appropriate standard for evaluating [a]weight of the evidence argument is the same, regardless of whether the factfinder was ajudge or jury" (People vRojas, 80 AD3d 782, 782 [2011] [internal quotation marks omitted]; seePeople v King, 85 AD3d at 821). Upon our review of the record here, we aresatisfied that the verdict of guilt on the count of assault in the second degree was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]; People vKing, 85 AD3d at 820).[*2]
The defendant's contention that his convictionsof harassment in the second degree and trespass were not supported by legally sufficientevidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d at 621), we find that it was legally sufficient to establish thedefendant's guilt of these crimes beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we are satisfied that the verdict of guiltwith respect to these crimes was not against the weight of the evidence (see People vRomero, 7 NY3d at 643-644).
The defendant contends that the County Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371, 376 [1974]) was improper. The extent to whichthe prosecution should be allowed to impeach the credibility of a defendant is a matterthat is generally left to the sound discretion of the trial court (see People vBennette, 56 NY2d 142, 146 [1982]; People v Carrasquillo, 204 AD2d 735,736 [1994]; People v Johnston, 186 AD2d 822 [1992]). Cross-examination is notautomatically precluded on the ground that a prior crime is similar to that for which thedefendant is on trial (see People v Hayes, 97 NY2d 203, 208 [2002]). Here, theCounty Court's Sandoval ruling allowed the prosecutor to ask the defendantabout the facts underlying a remote youthful offender adjudication involving an actsimilar to that which he engaged in while committing the assault for which he was beingtried, and precluded the prosecutor from inquiring about very recent similar acts. Weconclude that this ruling was a provident exercise of discretion. The defendant's furthercontention regarding the County Court's Sandoval ruling, as well as thedefendant's contentions regarding the County Court's conduct in addressing the People'sVentimiglia motion (see People v Ventimiglia, 52 NY2d 350 [1981]), arewithout merit.
The defendant's contention that the County Court improperly allowed the People toelicit from the complainant certain hearsay testimony related to the complainant's motiveunder the state-of-mind exception to the rule against hearsay is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, although the testimony wasincorrectly admitted under the state-of-mind exception because the People failed toestablish the foundational requirements for the exception (cf. People v James, 93NY2d 620, 634-635 [1999]; People v Leath, 98 AD3d 690 [2012]), the error washarmless, since there was overwhelming evidence of the defendant's guilt and nosignificant probability that the error contributed to his convictions (see People v Jackson, 8 NY3d869, 871 [2007]; People v Crimmins, 36 NY2d 230 [1975]). The defendant'sfurther contention that admission of the hearsay evidence deprived him of hisconstitutional right of confrontation is likewise unpreserved for appellate review (seeCPL 470.05 [2]). In any event, this contention is without merit, since the subjectevidence was not testimonial (see Crawford v Washington, 541 US 36, 51[2004]).
The defendant's contention that the trial judge displayed bias in its treatment of thedefense is unpreserved for appellate review (see CPL 470.05 [2]; People v Prado, 4 NY3d725, 726 [2004]; People vBedell, 84 AD3d 1733 [2011]; People v White, 81 AD3d 1039 [2011]; People v Marino, 21 AD3d430, 432 [2005]; People v Darling, 276 AD2d 922 [2000]). In any event,there is nothing in the record to support the defendant's claim of bias (see People v Argentieri, 66AD3d 558, 559 [2009]; People v Casey, 61 AD3d 1011, 1014 [2009]; People vLove, 307 AD2d 528, 532 [2003]; People v Maxam, 301 AD2d 791, 793[2003]).
The County Court properly denied the defendant's motion to set aside the verdictpursuant to CPL 330.30 (1), since there is no evidence in the record which would supportthe court's granting of the motion (see People v Green, 46 AD3d 324 [2007], citing Peoplev Harris, 98 NY2d 452 [2002]). Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.