People v. Blue

• Decision Date: 16 December 1991
• Citation: 577 N.Y.S.2d 638,178 A.D.2d 539
• Parties: The PEOPLE, etc., Respondent, v. Anthony BLUE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 638

577 N.Y.S.2d 638

178 A.D.2d 539

The PEOPLE, etc., Respondent, v. Anthony BLUE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 16, 1991.

William E. Betz, New York City, for appellant.

Anthony Blue, pro se.

Richard A. Brown, Dist. Atty., Kew Gardens, (Annette Cohen, of counsel), for respondent.

Before LAWRENCE, J.P., and BALLETTA, ROSENBLATT and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Beerman, J.), rendered September 11, 1987, convicting him of robbery in the first degree under Indictment Number 6550/86, upon a jury verdict, and imposing sentence, (2) a judgment of the same court (Hanophy J.), rendered April 6, 1988, convicting him of robbery in the first degree under Indictment Number 6551/86, upon a jury verdict, and imposing sentence, and (3) three judgments of the same court (Hanophy, J.), all rendered May 2, 1988, convicting him of robbery in the first degree (one count each under Indictment Numbers 6510/86, 7201/86 and 607/87, respectively), upon his pleas of guilty, and imposing sentences.

ORDERED that the judgment rendered September 11, 1987, is modified, on the law, by vacating the determination that the defendant is a second felony offender; as so modified, the judgment rendered September 11, 1987, is affirmed; and it is further,

ORDERED that the judgment rendered April 6, 1988, and the judgments rendered May 2, 1988, are affirmed.

The defendant's five convictions arise out of five separate armed robberies of supermarkets that he committed in August 1986. The judgments rendered September 11, 1987 (Indictment Number 6550/86) and April 6, 1988 (Indictment Number 6551/86) were the result of separate jury trials and the three judgments rendered May 3, 1988, were the result of the defendant's guilty pleas.

With regard to the first trial (Indictment Number 6550/86), the defendant contends that the trial court's Sandoval ruling constituted reversible error and that this error tainted the four subsequent proceedings. The defendant had at least one prior Federal conviction for robbery for which he was sentenced under the Federal Youth Corrections Act. The defendant contends that the court erred in ruling that the People could cross-examine him, if he testified at the trial, with respect to the fact that he had a prior Federal felony conviction, but could not question him about the underlying facts of that conviction. We find that this Sandoval ruling constituted a proper exercise of discretion by the trial court. By not permitting the prosecutor to explore the underlying facts of the felony, the court properly struck a balance between the probative value of this evidence as to the defendant's credibility and the risk of unfair prejudice to the defendant (see, People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413). Furthermore, the court properly ruled that even though the defendant was sentenced under the Federal Youth Corrections Act (hereinafter FYCA), the conviction could be used in later proceedings to impeach the defendant's credibility (see, People v. Rivera, 100 A.D.2d 914, 915, 474 N.Y.S.2d 573).

After the trial on Indictment Number 6550/86, the Supreme Court sentenced the defendant as a second felony offender based upon the 1979 FYCA conviction, notwithstanding the defense counsel's argument that this conviction could not serve as the basis for a second felony offender finding because the sentence for that felony had been set aside pursuant to the former FYCA. Under former 18 U.S.C. § 5021 (repealed October 12, 1984), a defendant, when sentenced, initially stood convicted of a crime (People v. Celli, 105 Misc.2d 1005, 430 N.Y.S.2d 949, affd. 91 A.D.2d 1071, 458 N.Y.S.2d 896). Any such conviction, however, was set aside automatically when the offender was granted an "unconditional discharge" under 18 U.S.C. § 5021(a) (see generally, United States v. Pagan, 721 F.2d 24 (2nd Cir.)). The People argued that the defendant had not met his burden of proving that the Federal conviction had been set aside. The court agreed with the People and adjudicated the defendant a second felony offender because the defense did not prove that this Federal conviction had been set aside. We find that the court improperly placed this burden of proof on the defendant. "Since ...