| People v Spallone |
| 2017 NY Slip Op 04065 [150 AD3d 556] |
| May 23, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Frank Spallone, Appellant. |
Mahler & Harris, P.C., Kew Gardens (Stephen R. Mahler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yan Slavinskiy of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered July 19,2016, convicting defendant, after a jury trial, of identity theft in the first degree, criminalpossession of a forged instrument in the second degree and criminal possession of forgerydevices, and sentencing him to concurrent terms of two to six years, unanimously modified, as amatter of discretion in the interest of justice, to the extent of reducing the sentence to concurrentterms of six months, concurrent with five years' probation, and otherwise affirmed. The matter isremitted to Supreme Court for further proceedings pursuant to CPL 460.50 (5).
We find that the court's reference to the prospect of a retrial in the event that the jury did notreach a verdict was not coercive under the circumstances (see e.g. People v Strother, 30 AD3d 346,346 [1st Dept 2006], lv denied 7 NY3d 818 [2006]). While the court's brief comment thatit would be "upsetting" if such a diverse jury could not reach a verdict was improvident, the courtnevertheless reminded the jury several times to decide the case based on the evidence, and that itwas not asking any juror to violate his or her conscience, or abandon his or her bestjudgment.
Since the jury acquitted defendant of the only charge about which an uncalled witness hadmaterial knowledge, defendant's argument that the court should have granted his request for amissing witness charge regarding this witness is moot, and his arguments to the contrary areunavailing.
In this case involving defendant's effort to vacate a default judgment by means of a falselynotarized affidavit, the testimony of the justice who presided over the civil lawsuit wasadmissible as proof that the allegedly false statements in defendant's affidavit were material, andwere submitted to a "public servant in the performance of [her] official functions" (Penal Law§ 210.40). Under the circumstances of the case, the fact that this relevant testimonycame from a sitting judge was not prejudicial (see People v Castillo, 94 AD3d 678, 678 [1st Dept 2012], lvdenied 19 NY3d 971 [2012]). The justice's testimony that she referred the matter to the"proper parties," while noting it was not her position to decide whether anyone had done anythingwrong, was limited and brief, and was admissible to complete the narrative of events leading todefendant's arrest (People v Morgan, 193 AD2d 467, 467 [1st Dept 1993], lvdenied 81 NY2d 1077 [1993]). The court instructed the jury that no witness, including ajudge, is presumed to be more or less truthful than someone with a different occupation, furtherensuring against any risk that the jury would give her testimony undue weight. Finally, to theextent that defendant challenges portions of the testimony that defense counsel elicited, thosechallenges are waived.
The prosecutor's comments in summation attacking the veracity of statements in defendant'saffidavit and the credibility of his trial testimony were not improper in this case, where defendantwas charged with various crimes requiring proof that he made false statements and acted withintent to deceive, and the prosecutor's arguments were not inflammatory (see People vKorsen, 167 AD2d 180, 181 [1st Dept 1990], lv denied 77 NY2d 962 [1991]; seealso People v Overlee, 236 AD2d 133, 136 [1st Dept 1997], lv denied 91 NY2d 976[1998]). [*2]Defendant did not preserve his remaining challengesto the prosecutor's summation, or to certain comments by the court (most of which were madeoutside the jury's presence), and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal.
We find the sentence excessive to the extent indicated. Concur—Acosta, P.J.,Renwick, Mazzarelli, Andrias and Manzanet-Daniels, JJ.