| People v DeJesus |
| 2016 NY Slip Op 00376 [135 AD3d 872] |
| January 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nicholas DeJesus, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez-Calderon of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered December 17, 2013, convicting him of robbery in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contentions regarding the Supreme Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]) are without merit. Of thedefendant's four prior convictions, the court ruled that if the defendant decided to testify,the People would be permitted to inquire about the facts underlying the defendant's priorconviction of robbery in the first degree. This ruling reflects an appropriate balancebetween the probative value of the defendant's prior crimes on the issue of his credibilityand the risk of possible prejudice (see People v Hayes, 97 NY2d 203, 208[2002]; People v Vetrano,88 AD3d 750, 750 [2011]). The defendant failed to sustain his burden ofdemonstrating that the prejudicial effect of the evidence of his prior robbery convictionso outweighed its probative worth that its exclusion was warranted (see People vVetrano, 88 AD3d at 750). That prior conviction was highly relevant to hiscredibility, and was admissible notwithstanding its similarity to the present crime (seePeople v Hayes, 97 NY2d at 207; People v Marcus, 112 AD3d 652, 653 [2013]; People v Hayes, 44 AD3d683, 683 [2007]). Furthermore, that prior conviction was not so remote in time as tomandate its preclusion, given the length of time of the defendant's incarceration betweenthat prior conviction and the trial of this matter (see People v McLaurin, 33 AD3d 819, 820 [2006];People v Damon, 150 AD2d 479, 480 [1989]). In addition, contrary to thedefendant's assertion, he was not the only witness available to testify for the defense. Thedefendant's wife, who testified on his behalf at the first trial of this matter, was availableto testify at the second trial, but the defendant chose not to call her. Nevertheless, even ifshe had been unavailable, the fact that the defendant may have been the only witness forthe defense "increased the importance of his credibility and his testimony, and did notmandate a ruling prohibiting inquiry" into his prior robbery conviction (People v Garcia, 45 AD3d860, 861 [2007]; see People v Hayes, 97 NY2d at 208; People v Edwards, 118 AD3d909, 909 [2014]).
The defendant's remaining contentions are without merit. Dillon, J.P., Dickerson,Miller and Duffy, JJ., concur.