Opinion
06-14-2017
The PEOPLE, etc., respondent, v. Joseph LOMBARDO, appellant.
Lynn W.L. Fahey, New York, NY (Nao Terai and Benjamin Litman of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Amanda Muros–Bishoff of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Nao Terai and Benjamin Litman of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Amanda Muros–Bishoff of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.), rendered December 1, 2014, convicting him of burglary in the first degree (two counts), robbery in the first degree, and robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, 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 ) did not deprive the defendant of a fair trial. The ruling reflected a proper balance between the probative value of the proffered evidence on the issue of the defendant's credibility and the danger of prejudice to the defendant (see People v. Sandoval, 34 N.Y.2d at 375, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; People v. Wright, 121 A.D.3d 924, 994 N.Y.S.2d 396 ). The Supreme Court correctly found that certain prior convictions bore directly upon the defendant's credibility and willingness to place his interests above those of society. Considering the length of the defendant's period of incarceration in the years between those prior convictions and the trial in this matter, those convictions were not so remote in time as to mandate preclusion (see People v. McLaurin, 33 A.D.3d 819, 826 N.Y.S.2d 279 ; People v. Mack, 6 A.D.3d 551, 775 N.Y.S.2d 345 ; People v. Peterson, 262 A.D.2d 502, 693 N.Y.S.2d 154 ). Moreover, the mere fact that the bad acts were similar or even identical in nature to the instant offenses did not warrant their preclusion, and the defendant is not shielded from impeachment because he chose to specialize in one type of criminal activity (see People v. Manigat, 136 A.D.3d 614, 24 N.Y.S.3d 397 ; People v. Harris, 74 A.D.3d 984, 902 N.Y.S.2d 190 ; People v. Jay, 187 A.D.2d 454, 589 N.Y.S.2d 529 ). Further, in prohibiting the prosecutors from eliciting the underlying facts of any of the defendant's prior convictions, the court avoided any undue prejudice to the defendant (see People v. Wallace, 128 A.D.3d 866, 7 N.Y.S.3d 610 ; People v. Biear, 119 A.D.3d 599, 987 N.Y.S.2d 896 ; People v. Edwards, 118 A.D.3d 909, 987 N.Y.S.2d 452 ). The defendant failed to sustain his burden of demonstrating that the prejudicial effect of the admission of evidence of the prior convictions for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion (see People v. Sandoval, 34 N.Y.2d at 378, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; People v. Grant, 7 N.Y.3d 421, 425–426, 823 N.Y.S.2d 757, 857 N.E.2d 52 ).
Furthermore, the in-court identification by a 13–year–old eyewitness did not deprive the defendant of a fair trial. Since the witness did not participate in a pretrial identification procedure and there is no colorable claim of suggestiveness, there was no need for the People to establish an independent basis for the admission of her testimony (see People v. Spirles, 275 A.D.2d 980, 713 N.Y.S.2d 434 ). Defense counsel was able to explore weaknesses of the identification in front of the jury (see People v. Jackson, 94 A.D.3d 1559, 943 N.Y.S.2d 365 ; People v. Morales, 228 A.D.2d 704, 644 N.Y.S.2d 976 ; People v. Medina, 208 A.D.2d 771, 617 N.Y.S.2d 491 ). Moreover, the defendant's challenges to the reliability of the identification evidence go to the weight to be afforded such evidence by the jury and not to its admissibility (see People v. Dennard, 39 A.D.3d 1277, 833 N.Y.S.2d 831 ; People v. Ross, 288 A.D.2d 138, 733 N.Y.S.2d 177 ; People v. Harris, 271 A.D.2d 258, 706 N.Y.S.2d 392 ).