Disposition: Applications for Criminal Leave to appeal denied Decision Reported Below: 4th Dept: 192 A.D.3d 1532 (Monroe)

In addition, defendant contends that Supreme Court abused its discretion in permitting the first-time, in-court identification because it was unduly suggestive. Initially, we note that defense counsel's general objection at trial was insufficient to preserve defendant's specific contention on appeal (see generally People v Ford, 69 N.Y.2d 775, 776 [1987], rearg denied 69 N.Y.2d 985 [1987]; People v Lewis, 192 A.D.3d 1532, 1534 [4th Dept 2021], lv denied 37 N.Y.3d 993 [2021]; People v Lewis, 129 A.D.3d 1546, 1547 [4th Dept 2015], lv denied 26 N.Y.3d 969 [2015]). In any event, defendant's contention is without merit.

The victim testified without contradiction that defendant lunged at him with a knife in his hand and that he then felt his neck being slashed, and that testimony was buttressed by photographic evidence depicting blood on defendant's hands (see generally People v Archibald, 148 A.D.3d 1794, 1794 [4th Dept 2017], lv denied 29 N.Y.3d 1075 [2017]). Defendant failed to preserve for our review his contention that he was denied a fair trial based on an alleged instance of prosecutorial misconduct during summation inasmuch as defense counsel made only a general objection to that remark, did not ask for a curative instruction or other further action, and based the subsequent motion for a mistrial on different grounds (see People v Lewis, 192 A.D.3d 1532, 1534 [4th Dept 2021], lv denied 37 N.Y.3d 993 [2021]; see also People v Gibson, 134 A.D.3d 1512, 1512-1513 [4th Dept 2015], lv denied 27 N.Y.3d 1151 [2016]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

that the court's Sandoval ruling, which, as relevant here, permitted the People to cross-examine defendant, should he elect to testify, regarding a prior conviction of attempted criminal possession of a weapon in the second degree and to elicit, inter alia, the name of that crime, constitutes reversible error. A court's Sandoval determination is reviewed for an abuse of discretion (seePeople v. Davis , 198 A.D.3d 1355, 1356, 155 N.Y.S.3d 516 [4th Dept. 2021], lv denied 38 N.Y.3d 926, 164 N.Y.S.3d 19, 184 N.E.3d 840 [2022] ), and will generally be affirmed on appeal where the record reflects that the court properly considered the parties’ arguments and "weighed the probative value of [the] defendant's prior conviction against its potential for undue prejudice" ( People v. Micolo , 171 A.D.3d 1484, 1485, 99 N.Y.S.3d 538 [4th Dept. 2019], lv denied 35 N.Y.3d 1096, 131 N.Y.S.3d 307, 155 N.E.3d 800 [2020] ; seePeople v. Hayes , 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ; People v. Lewis , 192 A.D.3d 1532, 1534, 145 N.Y.S.3d 230 [4th Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 420, 174 N.E.3d 360 [2021] ). The record before us, however, reflects that the court did not exercise independent discretion and instead erroneously concluded that it was "bound" by this Court's precedent to allow cross-examination as to the prior conviction. Although defense counsel argued before the court that it would be unduly prejudicial to permit questioning regarding a prior conviction of attempted criminal possession of a weapon in the second degree where the offense charged was criminal possession of a weapon in the second degree, the record reflects that the court did not exercise its discretion in weighing the probative value of defendant's conviction against its potential for undue prejudice.

We agree with defendant, however, that the court's Sandoval ruling, which, as relevant here, permitted the People to cross-examine defendant, should he elect to testify, regarding a prior conviction of attempted criminal possession of a weapon in the second degree and to elicit, inter alia, the name of that crime, constitutes reversible error. A court's Sandoval determination is reviewed for an abuse of discretion (see People v Davis, 198 A.D.3d 1355, 1356 [4th Dept 2021], lv denied 38 N.Y.3d 926 [2022]), and will generally be affirmed on appeal where the record reflects that the court properly considered the parties' arguments and "weighed the probative value of [the] defendant's prior conviction against its potential for undue prejudice" (People v Micolo, 171 A.D.3d 1484, 1485 [4th Dept 2019], lv denied 35 N.Y.3d 1096 [2020]; see People v Haynes, 97 N.Y.2d 203, 208 [2002]; People v Lewis, 192 A.D.3d 1532, 1534 [4th Dept 2021], lv denied 37 N.Y.3d 993 [2021]). The record before us, however, reflects that the court did not exercise independent discretion and instead erroneously concluded that it was "bound" by this Court's precedent to allow cross-examination as to the prior conviction.

We also reject defendant's contention that she was denied effective assistance of counsel. With respect to defendant's claim that defense counsel was ineffective for failing to argue at the Huntley hearing that defendant invoked her right to counsel during her interrogation, the People did not introduce at trial any of the statements challenged by defendant at the Huntley hearing and, thus, defendant could not have been prejudiced by defense counsel's alleged failure in that respect (see generally People v Hobot, 84 N.Y.2d 1021, 1024 [1995]; People v Lewis, 192 A.D.3d 1532, 1533 [4th Dept 2021], lv denied 37 N.Y.3d 993 [2021]). Furthermore, defense counsel was not ineffective for failing to object to certain testimony of a firearms examiner concerning the rifle and projectile that were recovered in connection with the incident.

We also reject defendant's contention that she was denied effective assistance of counsel. With respect to defendant's claim that defense counsel was ineffective for failing to argue at the Huntley hearing that defendant invoked her right to counsel during her interrogation, the People did not introduce at trial any of the statements challenged by defendant at the Huntley hearing and, thus, defendant could not have been prejudiced by defense counsel's alleged failure in that respect (see generallyPeople v. Hobot , 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ; People v. Lewis , 192 A.D.3d 1532, 1533, 145 N.Y.S.3d 230 [4th Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 420, 174 N.E.3d 360 [2021] ). Furthermore, defense counsel was not ineffective for failing to object to certain testimony of a firearms examiner concerning the rifle and projectile that were recovered in connection with the incident.

The issues of credibility and identification, including the weight to be given to any inconsistencies in the testimony of the various eyewitnesses," 'were properly considered by the jury and there is no basis for disturbing its determinations'" (People v Kelley, 46 A.D.3d 1329, 1330 [4th Dept 2007], lv denied 10 N.Y.3d 813 [2008]). Defendant's contention in his main brief that Supreme Court erred in refusing to suppress his statements to the police is moot because the People did not introduce those statements at trial (see People v Lewis, 192 A.D.3d 1532, 1533 [4th Dept 2021], lv denied 37 N.Y.3d 993 [2021]; People v Coleman, 134 A.D.3d 1555, 1557 [4th Dept 2015], lv denied 27 N.Y.3d 963 [2016]). Contrary to defendant's further contention in his main brief, the imposition of consecutive terms of imprisonment on the kidnapping and robbery counts is not illegal (see generally People v McKnight, 16 N.Y.3d 43, 47-50 [2010]) and, contrary to his contention in his pro se supplemental brief, his sentence is not unduly harsh or severe.