Opinion
904 KA 18-01568
11-19-2021
The PEOPLE of the State of New York, Respondent, v. Andrew W. FARLEY, Defendant-Appellant.
KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
KAMAN BERLOVE MARAFIOTI JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, BANNISTER, AND DEJOSEPH, 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, two counts of robbery in the first degree ( Penal Law § 160.15 [4] ). Contrary to defendant's contention, we conclude that Supreme Court did not abuse its discretion in fashioning a Sandoval compromise (see People v. Cotton , 184 A.D.3d 1145, 1146, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020] ; see generally People v. Sandoval , 34 N.Y.2d 371, 374-375, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). The court ruled that it would allow the prosecutor to ask defendant whether he had been convicted of a felony and the length of the sentence imposed. The court, however, precluded the prosecutor from asking about the underlying facts of the felony offense. The 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" ( People v. Carmichael , 171 A.D.3d 1084, 1085, 99 N.Y.S.3d 340 [4th Dept. 2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 651, 137 N.E.3d 21 [2019] ; see People v. Tarver , 292 A.D.2d 110, 116-117, 741 N.Y.S.2d 130 [3d Dept. 2002], lv denied 98 N.Y.2d 702, 747 N.Y.S.2d 421, 776 N.E.2d 10 [2002] ; People v. Zamora , 211 A.D.2d 834, 834-835, 621 N.Y.S.2d 381 [2d Dept. 1995], lv denied 85 N.Y.2d 945, 627 N.Y.S.2d 1007, 651 N.E.2d 932 [1995] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant failed to preserve for our review his contention that the integrity of the grand jury proceedings was impaired because the People introduced a statement by defendant that was later suppressed, and because the People did not provide the grand jury with a voluntariness instruction with respect to the statement (see People v. Rodriguez , 195 A.D.3d 1237, 1238, 148 N.Y.S.3d 538 [3d Dept. 2021] ; People v. Gutierrez , 96 A.D.3d 1455, 1455, 946 N.Y.S.2d 375 [4th Dept. 2012], lv denied 19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919 [2012] ). We decline to exercise our power to review the issue as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Defendant contends that he was arrested without probable cause, and, therefore, all of his subsequent statements to police should have been suppressed. We conclude, however, that "by failing to seek a ruling on that part of his omnibus motion seeking to suppress his statements [as the product of an unlawful arrest] and by failing to object to the admission in evidence of his statements at trial," defendant has abandoned his contention ( People v. Smith , 187 A.D.3d 1652, 1653, 132 N.Y.S.3d 498 [4th Dept. 2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 870, 164 N.E.3d 957 [2021] [internal quotation marks omitted]; see People v. Contreras , 154 A.D.3d 1320, 1321, 62 N.Y.S.3d 671 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 1107, 77 N.Y.S.3d 3, 6, 101 N.E.3d 389, 392 [2018]).
We conclude that the sentence is not unduly harsh or severe. Finally, we have reviewed defendant's remaining contentions, and conclude that none warrants reversal or modification of the judgment.