Opinion
71 KA 16–00045
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Thomas M. SHARP, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the fourth degree ( Penal Law § 155.30 [1 ] ), welfare fraud in the fourth degree (§ 158.10) and three counts of offering a false instrument for filing in the first degree (§ 175.35[1] ). In response to the jury's request for a readback of the "full testimony" of the only defense witness, the stenographer did not read the portions of the transcript in which the witness invoked her Fifth Amendment privilege against self-incrimination. Even assuming, arguendo, that County Court erred in redacting those portions of the transcript, we conclude that defendant was not "seriously prejudiced" by the redaction and thus reversal on that ground is not required ( People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212 [1987] ; see People v. Schafer, 81 A.D.3d 1361, 1362, 916 N.Y.S.2d 414 [4th Dept. 2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ). As defendant correctly concedes, the invocation of the privilege could be considered by the jury only in assessing the credibility of the defense witness (see generally People v. Siegel, 87 N.Y.2d 536, 543, 640 N.Y.S.2d 831, 663 N.E.2d 872 [1995] ). Moreover, as the People contend, the readback of those portions would have invited the jury to speculate as to the witness's reasons for invoking the privilege.
We reject defendant's further contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.