| People v Rivera |
| 2017 NY Slip Op 05624 [152 AD3d 625] |
| July 12, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jorge Rivera, Appellant. |
Mark Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco andSteven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Warhit, J.), rendered June 28, 2011, convicting him of criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
Police officers observed what appeared to be an illegal drug transaction on the roof of agarage on Yonkers Avenue in Westchester County at about 1:20 a.m. on July 13, 2010, afterwhich the men involved in the transaction began to flee. One officer testified that he saw the menjump from the roof of the garage to an adjacent fire escape, describing the man in the rear asHispanic and shirtless, with a large tattoo on his back and long, braided hair. The officer saw thisman place a black metallic object into a milk crate on the third floor of the fire escape. Theofficer then observed the men enter fourth-floor apartment windows on the west side of thebuilding. When the officers reached the third floor of the fire escape, they found a loaded blackrevolver in the milk crate. Once the officers arrived at the fourth floor, the defendant's fathergranted them permission to enter the subject apartment, in which they observed the shirtless manand three other men lying on top of couch cushions. The officers identified the defendant in courtas the shirtless man whom they had seen place the loaded revolver in the milk crate.
The defendant presented the testimony of his mother, who stated that at the time of thealleged crime, the defendant was in his room putting his daughter to sleep. He also presented thetestimony of his sister's boyfriend, who stated that the defendant was not on the fire escape on thenight at issue. The jury found the defendant guilty of criminal possession of a weapon in thesecond degree.
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in its Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) bydeciding to allow the prosecution to inquire into the underlying facts of the defendant's recentyouthful offender adjudication in the event that he chose to testify at trial. The courtappropriately weighed the probative value and prejudicial effect of the evidence and found thatthe underlying facts of the adjudication were relevant to the defendant's credibility because theyevinced his willingness to place his own interests above those of society (see People vGray, 84 NY2d 709, 712 [1995]; People v [*2]Betancourt, 106 AD3d831, 832 [2013]; People v Beckett, 186 AD2d 209, 210 [1992]).
Similarly unavailing is the defendant's contention that he was denied due process when theSupreme Court permitted the prosecutor to cross-examine a defense witness regarding mattersbeyond the scope of direct examination during the suppression hearing. The matters addressedduring this part of the cross-examination were irrelevant to the identification issue that was thesubject of the hearing, and no due process violation occurred.
The defendant's additional contention that the Supreme Court should have suppressed thepolice identification testimony on the ground that it was the fruit of an illegal arrest is notproperly before the Court, since the defendant expressly withdrew his challenge to the legality ofhis arrest before the court rendered its suppression ruling (see People v Mower, 97 NY2d239, 246 [2002]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]). In any event, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofcriminal possession of a weapon in the second degree beyond a reasonable doubt (seePenal Law § 265.03 [3]; People v Wisdom, 23 AD3d 759, 760-761 [2005]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 349 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633, 644-645 [2006]). The defendant's remaining contention iswithout merit. Mastro, J.P., Leventhal, Miller and Brathwaite Nelson, JJ., concur.