People v. Hernandez

• Citation: 931 N.Y.S.2d 780,89 A.D.3d 1123,2011 N.Y. Slip Op. 07744
• Parties: The PEOPLE of the State of New York, Respondent,v.Joel HERNANDEZ, Also Known as Haze, Appellant.
• Decision Date: 03 November 2011
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1123
931 N.Y.S.2d 780
2011 N.Y. Slip Op. 07744

The PEOPLE of the State of New York, Respondent,
v.
Joel HERNANDEZ, Also Known as Haze, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 3, 2011.

[931 N.Y.S.2d 781]

Bryan Konoski, Liverpool, for appellant.Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and EGAN JR., JJ.SPAIN, J.

[89 A.D.3d 1123] Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered December 19, 2008, upon a verdict convicting defendant of the crimes of attempted assault in the first degree (two counts), assault in the second degree (two counts), criminal possession of a weapon in the second degree (two counts) and reckless endangerment in the first degree.

Defendant was convicted, following a jury trial, of various crimes stemming from a shootout that occurred in August 2007 in the City of Schenectady, Schenectady County, allegedly between himself, codefendant Charles Ardrey and Diondrea McCaskill, the paramour of Ardrey's ex-girlfriend, during which two innocent bystanders were injured. Defendant thereafter was sentenced as a second felony offender to an aggregate term of 30 years

[931 N.Y.S.2d 782]

in prison with five years of postrelease supervision. On defendant's appeal, we now affirm.

[89 A.D.3d 1124] Initially, County Court did not, as asserted by defendant, commit reversible error in its Molineux ruling. Prior to trial, the People sought to introduce evidence of a January 2007 Vermont drug conviction, based on guilty pleas made by defendant and Ardrey to possessing 27 small packages of crack cocaine with the intent to sell, which were physically retrieved from Ardrey's body. Here, following the August 2007 shooting, Ardrey was again found in possession of crack cocaine, leading to several drug-related crimes for which defendant was also indicted, but not convicted. The People argued that the 2007 conviction was probative of defendant's intent to act in concert with Ardrey to constructively possess and sell the cocaine; they also sought to introduce evidence of defendant's alleged gang affiliation and other prior drug dealing and gun possession charges as additional evidence of intent and motive.

Where, as here, there is a proper nonpropensity purpose to the admission of prior bad acts, namely, defendant's intent to possess and sell cocaine recovered from Ardrey, “the decision whether to admit such evidence rests upon the trial court's discretionary balancing of probative value and unfair prejudice” ( People v. Barreto, 64 A.D.3d 1046, 1049, 882 N.Y.S.2d 594 [2009] [internal quotations and citations omitted], lv. denied 13 N.Y.3d 834, 890 N.Y.S.2d 450, 918 N.E.2d 965 [2009] ). Our review of the record reveals that County Court balanced the prejudice to defendant against the probative value of the proffered evidence, and ultimately permitted the introduction of the Vermont drug-related conviction as relevant to the People's theory...