Opinion
109282
04-19-2018
The PEOPLE of the State of New York, Respondent, v. Gilberto A. NUNEZ, Appellant.
Miedel & Mysliwiec LLP, New York City (Florian Miedel of counsel), for appellant. David M. Hoovler, District Attorney, Goshen (Robert H. Middlemiss of counsel), for respondent.
Miedel & Mysliwiec LLP, New York City (Florian Miedel of counsel), for appellant.
David M. Hoovler, District Attorney, Goshen (Robert H. Middlemiss of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 7, 2017, upon a verdict convicting defendant of the crimes of grand larceny in the third degree, insurance fraud in the third degree and falsifying business records in the first degree (five counts). Defendant was charged by indictment with grand larceny in the third degree, insurance fraud in the third degree and five counts of falsifying business records in the first degree stemming from allegations that he fraudulently obtained monetary proceeds from a business owner's insurance policy. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 1 to 3 years, to be served consecutively to the 1? to 4–year sentence imposed upon his recent convictions in an unrelated matter ( People v. Nunez, 160 A.D.3d 1227, 75 N.Y.S.3d 333, 2018 WL 1864619 [ decided herewith] ). He now appeals.
During the combined sentencing proceeding in which those sentences were imposed, defendant was also sentenced to a concurrent term of one year in jail upon his conviction of two counts of criminal possession of a forged instrument in the second degree (People v. Nunez, 160 A.D.3d 1221, 74 N.Y.S.3d 818, 2018 WL 1864631 [decided herewith] ).
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By failing to object to County Court's Sandoval ruling prior to the close of the Sandoval hearing, defendant did not preserve his present challenge to that ruling for our review (see People v. Stacconi, 151 A.D.3d 1395, 1397, 58 N.Y.S.3d 201 [2017] ; People v. Ramos, 129 A.D.3d 1205, 1207, 10 N.Y.S.3d 736 [2015], lv denied 26 N.Y.3d 971, 40 N.E.3d 585 [2015] ; People v. Burch, 97 A.D.3d 987, 990, 948 N.Y.S.2d 742 [2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). Were we to consider the issue, we would find it to be without merit. The prior convictions at issue were recent, not too similar to the charged crimes and were probative of defendant's credibility and willingness to place his own interests above those of society (see People v. Capers, 129 A.D.3d 1313, 1317, 12 N.Y.S.3d 317 [2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ; People v. Rockwell, 18 A.D.3d 969, 970–971, 794 N.Y.S.2d 726 [2005], lv denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ; People v. Perry, 221 A.D.2d 736, 737–738, 633 N.Y.S.2d 848 [1995], lv denied 87 N.Y.2d 1023, 644 N.Y.S.2d 157, 666 N.E.2d 1071 [1996] ). Further, County Court properly precluded any mention of the underlying facts in order to minimize any undue prejudice. Inasmuch as County Court appropriately balanced the probative value of the prior convictions against the risk of prejudice to defendant, we would find no abuse of discretion in its Sandoval ruling (see People v. Keener, 152 A.D.3d 1073, 1074, 61 N.Y.S.3d 158 [2017] ; People v. Cooley, 149 A.D.3d 1268, 1270–1271, 52 N.Y.S.3d 528 [2017], lvs denied 30 N.Y.3d 979, 981, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017] ).
Similarly unpreserved for our review is defendant's assertion that, in imposing the sentence, County Court improperly considered the murder charge of which he had been acquitted following a separate jury trial just months earlier (see CPL 470.05[2] ; People v. Hooks, 148 A.D.3d 930, 931–932, 49 N.Y.S.3d 499 [2017], lv denied 29 N.Y.3d 1081, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; People v. Guerrero, 129 A.D.3d 1102, 1103, 12 N.Y.S.3d 272 [2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ). In any event, the court twice confirmed at sentencing that it would not consider the murder victim's death in determining defendant's sentence. Instead, County Court expressly stated that the sentence imposed was based on defendant's deceptive and fraudulent conduct, as well as his lack of remorse. Viewing County Court's comments as a whole, we would find that "[t]he court did not base its sentence on a crime of which defendant had been acquitted, but rather sentenced him based on all the relevant facts and circumstances surrounding the crime[s] of which he was convicted" ( People v. Lipford, 129 A.D.3d 1528, 1531, 11 N.Y.S.3d 763 [2015] [internal quotation marks, ellipsis and citation omitted], lvs denied 26 N.Y.3d 1040, 1041, 22 N.Y.S.3d 170, 43 N.E.3d 380 [2015] ; see People v. Coleman, 151 A.D.3d 1385, 1388–1389, 58 N.Y.S.3d 631 [2017], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ; People v. Douglass, 115 A.D.3d 1055, 1057–1058, 981 N.Y.S.2d 846 [2014] ; People v. Neish, 232 A.D.2d 744, 747, 649 N.Y.S.2d 48 [1996], lv denied 89 N.Y.2d 927, 654 N.Y.S.2d 729, 677 N.E.2d 301 [1996] ; People v. La Veglia, 215 A.D.2d 836, 837, 626 N.Y.S.2d 314 [1995] ).
Finally, we are unpersuaded by defendant's contention that his sentence is harsh and excessive. Defendant received the minimum sentence allowable for these crimes (see Penal Law § 70.00[2][d], [e] ) and it was certainly within County Court's discretion to direct that this sentence run consecutively to that imposed upon defendant's unrelated convictions (see Penal Law § 70.25[1] ). Based upon our review of the record and after consideration of all relevant factors, we perceive neither an abuse of discretion nor any extraordinary circumstances warranting a modification of the consecutive sentence imposed (see People v. March, 122 A.D.3d 1001, 1003, 995 N.Y.S.2d 651 [2014] ; People v. Douglass, 115 A.D.3d at 1057–1058, 981 N.Y.S.2d 846 ; People v. Stumbrice, 194 A.D.2d 931, 932, 599 N.Y.S.2d 325 [1993], lv denied 82 N.Y.2d 727, 602 N.Y.S.2d 824, 622 N.E.2d 325 [1993] ).
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Lynch, Aarons and Pritzker, JJ., concur.