Opinion
520 KA 15–01447
07-05-2019
The PEOPLE of the State of New York, Respondent, v. Carl J. FULLER, Jr., Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal mischief in the third degree ( Penal Law § 145.05[2] ). Defendant contends that County Court erred in ruling, as part of a Sandoval compromise, that the People would be allowed, if defendant chose to testify, to cross-examine him fully regarding his prior felony conviction of aggravated unlicensed operation of a motor vehicle in the first degree ( Vehicle and Traffic Law § 511[3][a][ii] ; [b] ). Initially, contrary to the People's assertion, defendant's contention is preserved for our review. Defendant expressly requested, without success on the ground now advanced on appeal, a ruling that the People not be permitted to cross-examine him regarding the prior conviction, and he "is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule ... accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered" ( CPL 470.05[2] ; see People v. Pritchard , 149 A.D.3d 1479, 1479–1480, 52 N.Y.S.3d 595 [4th Dept. 2017] ; People v. Lessane , 142 A.D.3d 562, 563, 36 N.Y.S.3d 231 [2d Dept. 2016] ). We nevertheless conclude that defendant's contention lacks merit. "The extent to which prior convictions bear on the issue of a defendant's credibility is a question entrusted to the sound discretion of the court, reviewable only for clear abuse of discretion" ( People v. Williams , 98 A.D.3d 1234, 1235, 951 N.Y.S.2d 281 [4th Dept. 2012], lv denied 21 N.Y.3d 947, 968 N.Y.S.2d 10, 990 N.E.2d 144 [2013] [internal quotation marks omitted] ), and there was no such abuse of discretion here (see People v. Newland , 83 A.D.3d 1202, 1203, 921 N.Y.S.2d 396 [3d Dept. 2011], lv denied 17 N.Y.3d 798, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ; People v. Pomales , 49 A.D.3d 962, 964, 853 N.Y.S.2d 407 [3d Dept. 2008], lv denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ; People v. Brown , 39 A.D.3d 1207, 1207, 834 N.Y.S.2d 766 [4th Dept. 2007], lv denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007] ). Defendant's additional contention that the court should have conducted an evidentiary hearing regarding his explanation for the prior conviction is not preserved for our review (see CPL 470.05[2] ; People v. Jackson , 221 A.D.2d 254, 255, 635 N.Y.S.2d 463 [1st Dept. 1995], lv denied 87 N.Y.2d 974, 642 N.Y.S.2d 203, 664 N.E.2d 1266 [1996] ; People v. Henderson , 212 A.D.2d 1031, 1031–1032, 623 N.Y.S.2d 677 [4th Dept. 1995], lv denied 86 N.Y.2d 736, 631 N.Y.S.2d 616, 655 N.E.2d 713 [1995] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Finally, viewing the evidence in light of the elements of criminal mischief in the third degree as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see People v. Miranda , 119 A.D.3d 1421, 1421–1422, 989 N.Y.S.2d 563 [4th Dept. 2014], lv denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 [2014] ; see also People v. De Chellis , 265 A.D.2d 735, 735, 697 N.Y.S.2d 711 [3d Dept. 1999] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).