| People v Lombardo |
| 2017 NY Slip Op 04862 [151 AD3d 887] |
| June 14, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Lombardo, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai and Benjamin Litman of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum,and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.),rendered December 1, 2014, convicting him of burglary in the first degree (two counts), robberyin the first degree, and robbery in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) did not deprive the defendant of a fair trial. Theruling reflected a proper balance between the probative value of the proffered evidence on theissue of the defendant's credibility and the danger of prejudice to the defendant (see People vSandoval, 34 NY2d at 375; People vWright, 121 AD3d 924 [2014]). The Supreme Court correctly found that certain priorconvictions bore directly upon the defendant's credibility and willingness to place his interestsabove those of society. Considering the length of the defendant's period of incarceration in theyears between those prior convictions and the trial in this matter, those convictions were not soremote in time as to mandate preclusion (see People v McLaurin, 33 AD3d 819 [2006]; People v Mack, 6 AD3d 551[2004]; People v Peterson, 262 AD2d 502 [1999]). Moreover, the mere fact that the badacts were similar or even identical in nature to the instant offenses did not warrant theirpreclusion, and the defendant is not shielded from impeachment because he chose to specialize inone type of criminal activity (see Peoplev Manigat, 136 AD3d 614 [2016]; People v Harris, 74 AD3d 984 [2010]; People v Jay, 187AD2d 454 [1992]). Further, in prohibiting the prosecutors from eliciting the underlying facts ofany of the defendant's prior convictions, the court avoided any undue prejudice to the defendant(see People v Wallace, 128 AD3d866 [2015]; People v Biear, 119AD3d 599 [2014]; People vEdwards, 118 AD3d 909 [2014]). The defendant failed to sustain his burden ofdemonstrating that the prejudicial effect of the admission of evidence of the prior convictions forimpeachment purposes would so far outweigh the probative worth of such evidence on the issueof credibility as to warrant its exclusion (see People v Sandoval, 34 NY2d at 378; People v Grant, 7 NY3d 421,425-426 [2006]).
[*2] Furthermore, the in-courtidentification by a 13-year-old eyewitness did not deprive the defendant of a fair trial. Since thewitness did not participate in a pretrial identification procedure and there is no colorable claim ofsuggestiveness, there was no need for the People to establish an independent basis for theadmission of her testimony (see People v Spirles, 275 AD2d 980 [2000]). Defensecounsel was able to explore weaknesses of the identification in front of the jury (see People v Jackson, 94 AD3d1559 [2012]; People v Morales, 228 AD2d 704 [1996]; People v Medina,208 AD2d 771 [1994]). Moreover, the defendant's challenges to the reliability of theidentification evidence go to the weight to be afforded such evidence by the jury and not to itsadmissibility (see People v Dennard,39 AD3d 1277 [2007]; People v Ross, 288 AD2d 138 [2001]; People vHarris, 271 AD2d 258 [2000]). Mastro, J.P., Dillon, Roman and Brathwaite Nelson, JJ.,concur.