Opinion
2014-00342 Ind. No. 3118/11.
01-20-2016
The PEOPLE, etc., respondent, v. Nicholas DeJESUS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez–Calderon of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez–Calderon of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered December 17, 2013, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contentions regarding the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) are without merit. Of the defendant's four prior convictions, the court ruled that if the defendant decided to testify, the People would be permitted to inquire about the facts underlying the defendant's prior conviction of robbery in the first degree. This ruling reflects an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the risk of possible prejudice (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Vetrano, 88 A.D.3d 750, 750, 930 N.Y.S.2d 275). The defendant failed to sustain his burden of demonstrating that the prejudicial effect of the evidence of his prior robbery conviction so outweighed its probative worth that its exclusion was warranted (see People v. Vetrano, 88 A.D.3d at 750, 930 N.Y.S.2d 275). That prior conviction was highly relevant to his credibility, and was admissible notwithstanding its similarity to the present crime (see People v. Hayes, 97 N.Y.2d at 207, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Marcus, 112 A.D.3d 652, 653, 975 N.Y.S.2d 771; People v. Hayes, 44 A.D.3d 683, 683, 843 N.Y.S.2d 175). Furthermore, that prior conviction was not so remote in time as to mandate its preclusion, given the length of time of the defendant's incarceration between that prior conviction and the trial of this matter (see People v. McLaurin, 33 A.D.3d 819, 820, 826 N.Y.S.2d 279; People v. Damon, 150 A.D.2d 479, 480, 541 N.Y.S.2d 82). In addition, contrary to the defendant's assertion, he was not the only witness available to testify for the defense. The defendant's wife, who testified on his behalf at the first trial of this matter, was available to testify at the second trial, but the defendant chose not to call her. Nevertheless, even if she had been unavailable, the fact that the defendant may have been the only witness for the defense “increased the importance of his credibility and his testimony, and did not mandate a ruling prohibiting inquiry” into his prior robbery conviction (People v. Garcia, 45 A.D.3d 860, 861, 847 N.Y.S.2d 147; see People v. Hayes, 97 N.Y.2d at 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Edwards, 118 A.D.3d 909, 909, 987 N.Y.S.2d 452).
The defendant's remaining contentions are without merit.