Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered July 24, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of a forged instrument in the second degree (four counts) and criminal possession of stolen property in the fifth degree.
WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for resentencing in accordance with the following Memorandum: In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of four counts of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and one count of criminal possession of stolen property in the fifth degree (§ 165.40). In appeal No. 3, he appeals from a judgment convicting him upon a jury verdict of eight counts of criminal possession of a forged instrument in the second degree (§ 170.25), two counts of petit larceny (§ 155.25), and one count each of grand larceny in the third degree (§ 155.35 ), identity theft in the first degree (§ 190.80 ), and scheme to defraud in the first degree (§ 190.65  [b]).
We first address the contentions of defendant with respect to appeal No. 2 that are preserved for our review. Contrary to defendant's contention, defense counsel neither became a witness against defendant nor made any statements adverse to him (see People v Viscomi, 286 A.D.2d 886, 886, lv denied 97 N.Y.2d 763; People v Caple, 279 A.D.2d 635, 636, lv denied 96 N.Y.2d 798; see also People v Rivers, 296 A.D.2d 861, 862, lv denied 99 N.Y.2d 539). We reject defendant's contention that County Court's pretrial Molineux ruling constitutes an abuse of discretion (see People v Molineux, 168 NY 264, 293-294; People v Siplin, 66 A.D.3d 1416, 1417, lv denied 13 N.Y.3d 942; People v Gonzalez, 62 A.D.3d 1263, 1265, lv denied 12 N.Y.3d 925). Moreover, the court's limiting instruction "served to alleviate any potential prejudice resulting from the admission of the evidence" (People v Alke, 90 A.D.3d 943, 944, lv denied 19 N.Y.3d 994; see People v Freece, 46 A.D.3d 1428, 1429, lv denied 10 N.Y.3d 811). Defendant's further contention that the court abused its discretion in overruling defense counsel's objection to the scope of the People's redirect examination of a witness lacks merit. "[D]efendant opened the door to the redirect examination by only partially exploring on cross-examination the issue whether the witness and defendant had engaged in criminal activity together in the past, rendering further examination and clarification on that issue appropriate" (People v Blair, 94 A.D.3d 1403, 1404, lv denied 19 N.Y.3d 971; see People v Massie, 2 N.Y.3d 179, 183-185). Contrary to defendant's contention, we also conclude that the court did not err in determining that the identification of defendant by two of the People's witnesses was confirmatory (see People v Rodriguez, 79 N.Y.2d 445, 449-452; People v Cancer, 16 A.D.3d 835, 838-839, lv denied 5 N.Y.3d 826; People v Lainfiesta, 257 A.D.2d 412, 415-416, lv denied 93 N.Y.2d 926).
We next address the contentions defendant raises with respect to appeal No. 2 that are unpreserved for our review. Defendant's contention that the court erred in allowing a witness to testify that he had allegedly committed uncharged crimes outside the scope of the Molineux ruling is not properly before us inasmuch as defendant did not object at the time of that testimony (see People v Manning, 67 A.D.3d 1378, 1380, lv denied 14 N.Y.3d 803). We decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15  [a]). Moreover, "[b]y failing to object to the court's ultimate Sandoval ruling, defendant [also] failed to preserve for our review his further contention... that the ruling constitutes an abuse of discretion" (People v Tolliver, 93 A.D.3d 1150, 1151, lv denied 19 N.Y.3d 968). In any event, we conclude that the court's Sandoval ruling did not constitute a " clear abuse of discretion' " warranting reversal (id. at 1151-1152). Where, as here, "the convictions that the People seek to use are for crimes of individual dishonesty, the convictions should usually be admitted on a trial for similar charges, notwithstanding the risk of possible prejudice, because the very issue on which the offer is made is that of the veracity of the defendant as a witness in the case" (People v Williams, 98 A.D.3d 1234, 1235 [internal quotation marks omitted]).
We next address defendant's contentions relating to appeal No. 3. Defendant's contention that the court erred in failing to correct an alleged inconsistency between the verdict sheet and the jury's response to the poll concerning its verdict on the third count of the indictment is unpreserved for our review (see People v Mercado, 91 N.Y.2d 960, 963; People v Shaver, 86 A.D.3d 800, 802-803, lv denied 18 N.Y.3d 962, reconsideration denied 19 N.Y.3d 967; People v Lynch, 81 A.D.3d 1292, 1292-1293, lv denied 17 N.Y.3d 807). In any event, " [b]ased on the minutes and the jury verdict sheet, ' " it is clear that the clerk merely misspoke when she indicated that the jury had acquitted defendant of criminal possession of a forged instrument in the second degree as charged in the third count of the indictment, and that the jury had actually found defendant guilty of that count (Lynch, 81 A.D.3d at 1293). Further, we note that the parties do not dispute that the fourth count of the indictment, which charged defendant with petit larceny, was later dismissed on the People's consent by an order of County Court (Vincent Dinolfo, J.), determining defendant's motion pursuant to CPL article 440. Consequently, defendant's contentions that the verdict convicting him of that crime is against the weight of the evidence, and that the prosecutor failed to correct perjured testimony with respect to that count, are academic.
Defendant next contends that the verdict is against the weight of the evidence insofar as it convicted him of criminal possession of a forged instrument in the second degree under count five of the indictment and petit larceny as a lesser included offense of grand larceny in the fourth degree under count seven of the indictment. Viewing the evidence in light of the elements of those crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349), we reject that contention (see generally People v Bleakley, 69 N.Y.2d 490, 495). Defendant's further contention that the court erroneously admitted evidence of uncharged crimes not authorized by the Molineux ruling lacks merit (cf. People v Ventimiglia, 52 N.Y.2d 350, 361-362).
We agree with defendant, however, that the court erred in failing to suppress the in-court identification of defendant by the witness who specifically linked him at trial to the charge set forth in count six of the indictment on the ground that it was based on an unduly suggestive photo array procedure. Contrary to the People's assertion, this contention is preserved for our review (see People v Feingold, 7 N.Y.3d 288, 290). On the merits, the People did not meet their initial burden of establishing "the reasonableness of the police conduct and the lack of any undue suggestiveness" with respect to the first of two photo arrays in which the subject witness identified defendant inasmuch as there was no testimony with respect to that photo array (People v Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833; see People v Coleman, 73 A.D.3d 1200, 1203). Contrary to the People's further assertion, the error in admitting that identification testimony is not harmless beyond a reasonable doubt (cf. People v Siler, 45 A.D.3d 1403, 1403, lv denied 10 N.Y.3d 771; People v Davis, 15 A.D.3d 930, 931, lv denied 5 N.Y.3d 761). We therefore grant that part of defendant's omnibus motion seeking to suppress the identification testimony with respect to count six of the indictment.
We further conclude with respect to both appeals, however, that the court erred in allowing defendant to proceed pro se. Here, prior to sentencing in appeal No. 2, the court granted defendant's request to proceed pro se after he made what were, in the court's view, baseless accusations against his respective attorneys. Defendant subsequently proceeded pro se at sentencing at the first trial, i.e., the trial at issue in appeal No. 2, and he likewise proceeded pro se throughout the second trial, i.e., the trial at issue in appeal No. 3. We conclude that the court erred in allowing defendant to proceed pro se inasmuch as it did not "undertake a searching inquiry... to insur[e] that... defendant [was] aware of the dangers and disadvantages of proceeding without counsel" (People v Crampe, 17 N.Y.3d 469, 481 [internal quotation marks omitted]; see People v Allen, 99 A.D.3d 1252, 1253). Moreover, defendant did not forfeit his right to counsel. " While egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel'... there was no such conduct by defendant here to warrant an extreme, last-resort forfeiture analysis' " (People v Bullock, 75 A.D.3d 1148, 1149-1150, quoting People v Smith, 92 N.Y.2d 516, 521). We further conclude that the tainted proceedings adversely impacted defendant, thereby warranting vacatur of the sentence in appeal No. 2 and reversal of the judgment in appeal No. 3 (see Allen, 99 A.D.3d at 1253; see generally People v Wardlaw, 6 N.Y.3d 556, 559). We further note that the new trial granted with respect to appeal No. 3 should be preceded by a hearing to determine whether the subject witness with respect to count six of the indictment has an independent basis for an in-court identification of defendant (see People v Delamota, 18 N.Y.3d 107, 119; People v Wilson, 5 N.Y.3d 778, 780).
Finally, we have reviewed defendant's remaining contentions and conclude that they are either without merit or are rendered academic ...