Opinion
07-01-2015
The PEOPLE, etc., respondent, v. Brian MACK, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Sharon Brodt of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Brooke E. Barnes, and Sharon Brodt of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered October 25, 2013, convicting him of grand larceny in the fourth degree, possession of burglar's tools, criminal possession of stolen property in the fifth degree, and criminal mischief in the fourth 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 ) was a provident exercise of its discretion. The court's ruling struck an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the potential prejudice to the defendant (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; People v. Barton, 110 A.D.3d 1089, 1090, 973 N.Y.S.2d 760 ; People v. Thompson, 99 A.D.3d 819, 819, 951 N.Y.S.2d 754 ).
The defendant's contention that the Supreme Court's procedure for handling a certain jury note violated the procedure set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review. The alleged error did not constitute a mode of proceedings error, since the court's response to the note involved a ministerial, rather than a substantive matter, and defense counsel had notice of the jury's note and failed to object when the alleged error could have been cured (see People v. Williams, 21 N.Y.3d 932, 934–935, 969 N.Y.S.2d 421, 991 N.E.2d 195 ; People v. Mays, 20 N.Y.3d 969, 970–971, 959 N.Y.S.2d 119, 982 N.E.2d 1252 ; People v. Ippolito, 20 N.Y.3d 615, 624–625, 964 N.Y.S.2d 499, 987 N.E.2d 276 ; People v. Ochoa, 14 N.Y.3d 180, 188, 899 N.Y.S.2d 66, 925 N.E.2d 868 ; People v. Lykes, 81 N.Y.2d 767, 769–770, 593 N.Y.S.2d 779, 609 N.E.2d 132 ).
MASTRO, J.P., CHAMBERS, ROMAN and LaSALLE, JJ., concur.