| People v Biear |
| 2014 NY Slip Op 04954 [119 AD3d 599] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v James C. Biear, Appellant. |
John R. Lewis, Sleepy Hollow, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, StevenBender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Zambelli, J.), rendered August 16, 2012, convicting him of falsely reporting an incidentin the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the instant prosecution is barred by the doublejeopardy statute (CPL 40.20) because it is based upon the same alleged act that was thebasis of a count in a federal indictment and prosecution of the defendant is without merit.CPL 40.20 (2) (b) provides that a person may not be prosecuted for two offenses basedupon the same act or criminal transaction unless each of the offenses as defined containsan element which is not an element of the other, and the statutory provisions definingsuch offenses are designed to prevent very different kinds of harm or evil. Here, thefederal crime of mail fraud (18 USC § 1341) requires using the postalservice in furtherance of the commission of a fraud, and the state crime of falselyreporting an incident in the third degree (Penal Law § 240.50 [3] [a]) doesnot. Falsely reporting an incident in the third degree requires the false report of analleged incident to a law enforcement officer or agency, and mail fraud does not.Similarly, the purpose of 18 USC § 1341 is to prevent the post office frombeing used to carry out fraudulent schemes (see Parr v United States, 363 US370, 389 [1960]), and the purpose of Penal Law § 240.50 (3) (a) is toprevent the waste of the time and resources of law enforcement (see People ex rel.Morris v Skinner, 67 Misc 2d 221, 224 [1971]).
The defendant's contention that the trial court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) deprived him of his right to testify on hisown behalf also is without merit. The record shows that the court engaged in the requisitebalancing of probative value against prejudicial effect, and reached an appropriatecompromise ruling (see People v McManus, 300 AD2d 321, 321 [2002]). Thecourt precluded inquiry into the underlying facts of the defendant's federal mail fraudconviction, thus avoiding any undue prejudice to the defendant (see id.). Thefederal convictions involving theft were highly relevant to the issue of the defendant'scredibility, because they demonstrated his willingness to deliberately further hisself-interest at the expense of society (see People v Harris, 74 AD3d 984, 984 [2010]; People v Telesford, 2 AD3d757, 757 [2003]; People v Hegdal, 266 AD2d 472, 473 [1999]). The factthat the defendant was the sole potential witness for the defense did not [*2]mandate a ruling prohibiting inquiry into his prior conduct,and only increased the importance of his credibility and his testimony (see People vHayes, 97 NY2d 203, 208 [2002]; People v Garcia, 45 AD3d 860, 860-861 [2007]; People v McLaurin, 33 AD3d819, 819 [2006]; People vCruz, 21 AD3d 967, 968 [2005]). The court's Sandoval rulingconstituted a proper exercise of its discretion, and did not deprive the defendant of theright to testify on his own behalf (see People v Harewood, 206 AD2d 437, 438[1994]).
The defendant's remaining contention is without merit. Mastro, J.P., Dickerson,Cohen and Miller, JJ., concur.