Opinion
48 KA 15–00763
01-31-2020
The PEOPLE of the State of New York, Respondent, v. Gary L. EADY, Defendant–Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND BANNISTER, 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 four counts of criminal possession of a forged instrument in the second degree ( Penal Law § 170.25 ). We reject defendant's contention that Supreme Court's Molineux ruling constituted an abuse of discretion. The evidence was particularly relevant on the issues of defendant's intent to defraud or knowledge that the instruments were forged (see People v. Bastian, 294 A.D.2d 882, 883, 743 N.Y.S.2d 217 [4th Dept. 2002], lv denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1 [2002] ; People v. Aiken, 293 A.D.2d 623, 623, 740 N.Y.S.2d 239 [2d Dept. 2002], lv denied 98 N.Y.2d 672, 746 N.Y.S.2d 461, 774 N.E.2d 226 [2002] ; People v. Brand, 135 A.D.2d 1125, 1125, 523 N.Y.S.2d 277 [4th Dept. 1987], lv denied 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d 1082 [1988] ). The probative value of that evidence outweighed its prejudicial effect (see generally People v. Williams, 101 A.D.3d 1730, 1731, 957 N.Y.S.2d 548 [4th Dept. 2012], lv denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ). We reject defendant's further contention that the court abused its discretion in not allowing him to plead guilty prior to trial. Defendant requested to plead guilty with a promised sentence of 3½ to 7 years, but the court refused to agree to any promised sentence. A court has the power to determine the appropriate sentence (see People v. Williams, 158 A.D.2d 930, 930–931, 551 N.Y.S.2d 94 [4th Dept. 1990], lv denied 75 N.Y.2d 971, 556 N.Y.S.2d 256, 555 N.E.2d 628 [1990] ), and we perceive no abuse of the court's discretion here.
Finally, defendant contends that County Court (Dinolfo, J.) abused its discretion by denying defendant's request to participate in the judicial diversion program. We reject that contention. The court did not abuse its discretion in determining that defendant was not an appropriate candidate for the program because of the lack of any connection between his criminal behavior and his substance abuse issues, his extensive criminal history, and the threat defendant posed to other program participants and the general public (see People v. Clarke, 155 A.D.3d 1242, 1243–1244, 65 N.Y.S.3d 578 [3d Dept. 2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018] ; People v. Chavis, 151 A.D.3d 1757, 1758, 56 N.Y.S.3d 744 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Pittman, 140 A.D.3d 989, 989, 33 N.Y.S.3d 443 [2d Dept. 2016] ; see generally CPL 216.05[3][b] ).