| People v Taylor |
| 2016 NY Slip Op 04827 [140 AD3d 1738] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDaszell Taylor, Appellant. |
Genesee Valley Legal Aid, Inc., Geneseo (Jeannie D. Michalski of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Robert B. Wiggins, J.),rendered September 14, 2010. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the second degree (Penal Law § 120.05 [2]), andcriminal possession of a weapon in the third degree (§ 265.02 [1]).Defendant contends that County Court's Sandoval ruling denied him his right to afair trial. "By failing to object to the court's ultimate Sandoval ruling, defendantfailed to preserve that contention for our review" (People v Poole, 79 AD3d 1685, 1685 [2010], lv denied16 NY3d 862 [2011]). In any event, the court's Sandoval ruling does notconstitute an abuse of discretion (see People v Smalls, 16 AD3d 1154, 1155 [2005], lvdenied 5 NY3d 769 [2005]). Contrary to defendant's contention, the court properlypermitted his prior drug convictions to be used for impeachment purposes inasmuch asthe jury could have considered them as a manifestation of defendant's willingness toplace his own interests above that of the community (see generally People v Newland, 83 AD3d 1202,1203-1204 [2011], lv denied 17 NY3d 798 [2011]). Moreover, the fact that theconvictions were 15 or more years old does not require preclusion of those convictionsfor impeachment purposes (seePeople v Fotiou, 39 AD3d 877, 878 [2007], lv denied 9 NY3d 843[2007]).
We reject defendant's further contention that the court erred in instructing the jury onthe use of deadly physical force rather than the use of ordinary physical force (seePeople v Davis, 118 AD2d 206, 209 [1986], lv denied 68 NY2d 768 [1986]).Defendant's use of a pocket knife to inflict injury on the victim clearly constituted the useof deadly physical force (see id.). Contrary to defendant's further contention, the court correctly instructed the juryon the issue whether the altercation with the victim occurred in defendant's dwelling(see People v Berk, 88 NY2d 257, 267 [1996], cert denied 519 US 859[1996]).
We reject defendant's contention that he was deprived of a fair trial as a result of thecourt's instruction to the jury on consciousness of guilt. We conclude that there was "asufficient factual predicate to support a jury instruction on the concept of flight asevidence of consciousness of guilt" (People v Cartledge, 50 AD3d 1555, 1556 [2008], lvdenied 10 NY3d 957 [2008] [internal quotation marks omitted]), and we note thatthe instruction given by the court was consistent with the instruction set forth in thePattern Criminal Jury Instructions (see People v Muscarella, 132 AD3d 1288, 1289 [2015],lv denied 26 NY3d 1147 [2016]).
Finally, there is no merit to defendant's contention that he was entitled to have thejury instructed on the issue of justification with respect to the criminal possession of aweapon count (see People v Pons, 68 NY2d 264, 267 [1986]).Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.