Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Daszell TAYLOR, Defendant–Appellant.
Genesee Valley Legal Aid, Inc., Geneseo (Jeannie D. Michalski of Counsel), for Defendant–Appellant. Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
Genesee Valley Legal Aid, Inc., Geneseo (Jeannie D. Michalski of Counsel), for Defendant–Appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2] ), and criminal possession of a weapon in the third degree (§ 265.02[1] ). Defendant contends that County Court's Sandoval ruling denied him his right to a fair trial. “By failing to object to the court's ultimate Sandoval ruling, defendant failed to preserve that contention for our review” (People v. Poole, 79 A.D.3d 1685, 1685, 917 N.Y.S.2d 775, lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 ). In any event, the court's Sandoval ruling does not constitute an abuse of discretion (see People v. Smalls, 16 A.D.3d 1154, 1155, 792 N.Y.S.2d 748, lv. denied 5 N.Y.3d 769, 801 N.Y.S.2d 264, 834 N.E.2d 1274 ). Contrary to defendant's contention, the court properly permitted his prior drug convictions to be used for impeachment purposes inasmuch as the jury could have considered them as a manifestation of defendant's willingness to place his own interests above that of the community (see generally People v. Newland, 83 A.D.3d 1202, 1203–1204, 921 N.Y.S.2d 396, lv. denied 17 N.Y.3d 798, 929 N.Y.S.2d 107, 952 N.E.2d 1102 ). Moreover, the fact that the convictions were 15 or more years old does not require preclusion of those convictions for impeachment purposes (see People v. Fotiou, 39 A.D.3d 877, 878, 834 N.Y.S.2d 319, lv. denied 9 N.Y.3d 843, 840 N.Y.S.2d 770, 872 N.E.2d 883 ).
We reject defendant's further contention that the court erred in instructing the jury on the use of deadly physical force rather than the use of ordinary physical force (see People v. Davis, 118 A.D.2d 206, 209, 504 N.Y.S.2d 885, lv. denied 68 N.Y.2d 768, 506 N.Y.S.2d 1052, 498 N.E.2d 154 ). Defendant's use of a pocket knife to inflict injury on the victim clearly constituted the use of deadly physical force (see id. ). Contrary to defendant's further contention, the court correctly instructed the jury on the issue whether the altercation with the victim occurred in defendant's dwelling (see People v. Berk, 88 N.Y.2d 257, 267, 644 N.Y.S.2d 658, 667 N.E.2d 308, cert. denied 519 U.S. 859, 117 S.Ct. 160, 136 L.Ed.2d 104 ).
We reject defendant's contention that he was deprived of a fair trial as a result of the court's instruction to the jury on consciousness of guilt. We conclude that there was “a sufficient factual predicate to support a jury instruction on the concept of flight as evidence of consciousness of guilt” (People v. Cartledge, 50 A.D.3d 1555, 1556, 855 N.Y.S.2d 797, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [internal quotation marks omitted] ), and we note that the instruction given by the court was consistent with the instruction set forth in the Pattern Criminal Jury Instructions (see People v. Muscarella, 132 A.D.3d 1288, 1289, 17 N.Y.S.3d 229, lv. denied 26 N.Y.3d 1147, 32 N.Y.S.3d 61, 51 N.E.3d 572 ).
Finally, there is no merit to defendant's contention that he was entitled to have the jury instructed on the issue of justification with respect to the criminal possession of a weapon count (see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.