Submitted - May 12, 2017
Diamond, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY
(Raffaelina Gianfrancesco and Steven A. Bender of counsel),
WILLIAM F. MASTRO, LP. JOHN M. LEVENTHAL ROBERT L MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court,
Westchester County (Warhit, J.), rendered June 28, 2011,
convicting him of criminal possession of a weapon in the
second degree, upon a jury verdict, and imposing sentence.
The appeal brings up for review the denial, after a hearing,
of that branch of the defendant's omnibus motion which
was to suppress identification testimony.
that the judgment is affirmed.
officers observed what appeared to be an illegal drug
transaction on the roof of a garage on Yonkers Avenue in
Westchester County at about 1:20 a.m. on July 13, 2010, after
which the men involved in the transaction began to flee. One
officer testified that he saw the men jump from the roof of
the garage to an adjacent fire escape, describing the man in
the rear as Hispanic and shirtless, with a large tattoo on
his back and long, braided hair. The officer saw this man
place a black metallic object into a milk crate on the third
floor of the fire escape. The officer then observed the men
enter fourth-floor apartment windows on the west side of the
building. When the officers reached the third floor of the
fire escape, they found a loaded black revolver in the milk
crate. Once the officers arrived at the fourth floor, the
defendant's father granted them permission to enter the
subject apartment, in which they observed the shirtless man
and three other men lying on top of couch cushions. The
officers identified the defendant in court as the shirtless
man whom they had seen place the loaded revolver in the milk
detendant presented the testimony or his mother, who stated
that at the time or the alleged crime, the defendant was in
his room putting his daughter to sleep. He also presented the
testimony of his sister's boyfriend, who stated that the
defendant was not on the fire escape on the night at issue.
The jury found the defendant guilty of criminal possession of
a weapon in the second degree.
to the defendant's contention, the Supreme Court
providently exercised its discretion in its Sandoval
ruling (see People v Sandoval, 34 N.Y.2d 371) by
deciding to allow the prosecution to inquire into the
underlying facts of the defendant's recent youthful
offender adjudication in the event that he chose to testify
at trial. The court appropriately weighed the probative value
and prejudicial effect of the evidence and found that the
underlying facts of the adjudication were relevant to the
defendant's credibility because they evinced his
willingness to place his own interests above those of society
(see People v Gray, 84 N.Y.2d 709, 712; People v
Betancourt, 106 A.D.3d 831, 832; People v
Beckett, 186 A.D.2d 209, 210).
unavailing is the defendant's contention that he was
denied due process when the Supreme Court permitted the
prosecutor to cross-examine a defense witness regarding
matters beyond the scope of direct examination during the
suppression hearing. The matters addressed during this part
of the cross-examination were irrelevant to the
identification issue that was the subject of the hearing, and
no due process violation occurred.
defendant's additional contention that the Supreme Court
should have suppressed the police identification testimony on
the ground that it was the fruit of an illegal arrest is not
properly before the Court, since the defendant expressly
withdrew his challenge to the legality of his arrest before
the court rendered its suppression ruling (see People v
Mower, 97 N.Y.2d 239, 246).
defendant's challenge to the legal sufficiency of the
evidence is unpreserved for appellate review (see
CPL 470.05 ; People v Hawkins,11 N.Y.3d 484). In
any event, viewing the evidence in the light most favorable
to the prosecution (see People v Contes, 60 N.Y.2d
620, 621, 467), we find that it was legally sufficient to
establish the defendant's guilt of criminal possession of
a weapon in the second degree beyond a reasonable doubt
(see Penal Law § 265.03 ; People v
Wisdom,23 A.D.3d 759, 760-761). Moreover, in fulfilling
our responsibility to conduct an independent review of the
weight of the evidence (see CPL 470.15 ;
People v Danielson,9 N.Y.3d 342, 349), we
nevertheless accord great deference to the jury's
opportunity to view the witnesses, hear the testimony, and
observe their demeanor (see People v Mateo, 2 N.Y.3d
383, 410; People v Bleakley,69 N.Y.2d ...