| People v Ortiz |
| 2014 NY Slip Op 00616 [114 AD3d 430] |
| February 4, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Luis Ortiz, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Catherine M. Reno of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered January 24,2011, convicting defendant, after a jury trial, of burglary in the second degree, andsentencing him, as a persistent felony offender, to a term of 23 years to life, unanimouslymodified, on the law, to the extent of vacating the sentence and remanding forresentencing, and otherwise affirmed.
The court properly determined that the doctrine of collateral estoppel did not requirepreclusion of all evidence pertaining to defendant's possession, use or threatened use of arazor blade, since he failed to meet his heavy burden to establish that the jury at his firsttrial necessarily decided these particular factual issues in his favor (see People vAcevedo, 69 NY2d 478, 487 [1987]). "[C]ollateral estoppel should be appliedsparingly in criminal cases" (People v O'Toole, 22 NY3d 335, 339 [2013]).
At defendant's first trial, which led to reversal by this Court (69 AD3d 490 [1st Dept2010]), defendant was acquitted of first-degree burglary and robbery but convicted ofsecond-degree burglary. Based on a "practical, rational reading" (Acevedo, 69NY2d at 487) of the record of the first trial, including the evidence presented and theissues raised, we conclude that a "rational jury could have grounded its decision on anissue other than that which the defendant seeks to foreclose from consideration"(People v Goodman, 69 NY2d 32, 40 [1986]).
Moreover, it is apparent in this case that "the Acevedo rule [could not]practicably be followed if a necessary witness [were] to give truthful testimony"(O'Toole, 22 NY3d at 339). As we indicated on the prior appeal, the case turnedon the credibility issue of whether the incident was an altercation or a home invasion.Thus, the presence of the razor blade was essential to completing the complainingwitnesses' narrative and establishing the criminal intent element of burglary, anddefendant was properly precluded from "tak[ing] unfair advantage of the dilemma thatAcevedo creates for the People" (id.).
None of the issues raised by defendant relating to his impeachment by way of astatement made by his attorney warrant reversal. The court properly admitted a statementmade at arraignment by defendant's counsel, who was also trial counsel, to impeachdefendant after he testified to a different version of the events (see People vBrown, 98 NY2d 226, 232-233 [2002]). [*2]At thearraignment, the attorney stated that defendant was the source of the information, and theattorney was clearly acting as defendant's authorized agent when she provided thisinformation to the arraignment court for her client's benefit (see People v Moye, 11 AD3d212 [1st Dept 2004], lv denied 4 NY3d 766 [2005]; see also People v Kallamni, 14AD3d 316 [1st Dept 2005], lv denied 4 NY3d 854 [2005]), notwithstandingher assertion at trial that she had inaccurately conveyed her client's version of theincident. Introduction of the statements did not require the People to call counsel as awitness against her client (seePeople v Castillo, 94 AD3d 678, 679 [1st Dept 2012], lv denied 19NY3d 971 [2012]), and the People never sought to do so.
Defense counsel moved for a mistrial, claiming, among other things, that she wouldhave to testify on her client's behalf to explain the inaccuracy in her arraignmentstatement. The court properly exercised its discretion in denying that drastic remedy,because the court, with the participation of the parties, took sufficient steps to preventdefendant from being prejudiced. To the extent the advocate-witness rule was implicatedin this case, it only involved the ethical rule against testifying for one's client(see People v Berroa, 99 NY2d 134, 140 [2002]). Unlike the stipulation inBerroa, here the stipulation to the attorney's testimony was sufficient to bothprotect defendant's interests regarding the impeachment issue and to avoid anadvocate-witness problem.
By failing to make timely and specific objections, defendant failed to preserve hischallenges to the prosecutor's summation (see People v Romero, 7 NY3d 911, 912 [2006]), and wedecline to review them in the interest of justice. Defendant also failed to preserve any ofhis present constitutional claims regarding the admission of the arraignment statementand the related issues, including his claim that he was deprived of his right toconflict-free counsel. We decline to review any of these unpreserved claims in theinterest of justice. As an alternative holding, we reject them on the merits.
A new sentencing proceeding is required because the court imposed a longersentence than the one defendant received after his first trial, and there was no "recordarticulation of some event becoming known or available only after the first sentence andjustifying the more severe sentence" (People v Van Pelt, 76 NY2d 156, 161[1990]). In light of this determination, we do not reach defendant's contention that hissentence should be reduced in the interest of justice. Concur—Tom, J.P.,Friedman, DeGrasse, Feinman and Gische, JJ. [Prior Case History: 30 Misc 3d1234(A), 2011 NY Slip Op 50353(U).]