People v. Kadarko

CourtNew York Supreme Court Appellate Division
Writing for the CourtTOM, J.P., FRIEDMAN, McGUIRE, FREEDMAN, JJ.
Citation73 A.D.3d 639,901 N.Y.S.2d 612,2010 N.Y. Slip Op. 04502
Decision Date27 May 2010
PartiesThe PEOPLE of the State of New York, Respondent,v.James KADARKO, Defendant–Appellant.

73 A.D.3d 639
901 N.Y.S.2d 612
2010 N.Y. Slip Op. 04502

The PEOPLE of the State of New York, Respondent,
v.
James KADARKO, Defendant–Appellant.

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

May 27, 2010.


[901 N.Y.S.2d 613]

Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), for appellant.Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.TOM, J.P., FRIEDMAN, McGUIRE, FREEDMAN, JJ.

[73 A.D.3d 639] Judgment, Supreme Court, Bronx County (Robert E. Torres, J.), rendered November 2, 2006, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 12 years, followed by 5 years of postrelease supervision, unanimously affirmed.

This matter was remitted by the Court of Appeals (14 N.Y.3d 426, 902 N.Y.S.2d 828, 928 N.E.2d 1025 [2010] ) for consideration of issues raised but not decided on a prior appeal (56 A.D.3d 102, 867 N.Y.S.2d 32 [2008] ). Defendant was charged with the knifepoint robberies of three men making deliveries for Chinese restaurants. He was indicted for robbery in the first degree (five counts) and robbery in the third degree (five counts) in connection with the robbery of (1) Xun–Zheng Wang on August 3 and 9, 2004; (2) Xing–Wu Dong on July 20, 2004; and (3) Lisheng Huang on July 14 and 26, 2004. A jury convicted defendant of the first degree robbery of Wang on August 9, 2004, and was unable to reach a verdict on all other charges.

[73 A.D.3d 640] At trial, Huang testified that upon seeing defendant after making a delivery on July 14, 2004, he turned and ran because he recognized defendant from an earlier encounter. On cross-examination, the witness testified that he was able to identify defendant because he had been robbed by him previously. On re-direct, Huang clarified that defendant had robbed him on two prior occasions and that those crimes had

[901 N.Y.S.2d 614]

not been reported to police. Although defendant requested a supplemental instruction limiting the testimony concerning uncharged crimes to identification, the court did not give a limiting instruction to the jury.

Defendant argues that this testimony only served to indicate that he had a propensity to commit robberies, and its prejudicial impact thus outweighed any probative value ( People v. Foster, 295 A.D.2d 110, 113, 743 N.Y.S.2d 429 [2002], lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 7, 778 N.E.2d 558 [2002] ), violating his right to due process. However, as defendant failed to raise this contention before the trial court, it is not preserved for our review, and we decline to review it in the interest of justice ( People v. Lyons, 81 N.Y.2d 753, 754, 593 N.Y.S.2d 776, 609 N.E.2d 129 [1992] ). As an alternative ground, we reject it on the merits. Uncharged crimes are admissible to establish a defendant's identity ( see People v. Allweiss, 48 N.Y.2d 40, 47–49, 421 N.Y.S.2d 341, 396 N.E.2d 735 [1979] ), or as necessary background material or...

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3 practice notes
  • Ferguson v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 2010
    ...Rivera's conduct to be wanton, reckless or malicious ( see Rivera v. City of New York, 40 A.D.3d 334, 344, 836 N.Y.S.2d 108 [2007] ). [901 N.Y.S.2d 612] On appeal, defendants no longer seek a new trial on punitive damages in order to assess Officer Rivera's net worth. They also concede that......
  • Kadarko v. Lempke, 11 Civ. 3003 (KBF) (RLE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 25, 2014
    ...to respond." Id. at 828. On May 27, 2010, the First Department affirmed petitioner's conviction and sentence. People v. Kadarko, 901 N.Y.S.2d 612 (1st Dep't 2010). On September 1, 2010, the New York Court of Appeals denied petitioner leave to appeal. People v. Kadarko, 901 N.Y.S.2d 612......
  • People v. Wrotten
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 2010
    ...(14 N.Y.3d at 40, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [emphasis added] ). Accordingly, I think it reasonable to conclude that the Court [73 A.D.3d 639] of Appeals regarded the finding that Supreme Court actually made as tantamount to a finding of “necessity.” On that assumption, I agree we sh......
3 cases
  • Ferguson v. City of N.Y.
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 2010
    ...Rivera's conduct to be wanton, reckless or malicious ( see Rivera v. City of New York, 40 A.D.3d 334, 344, 836 N.Y.S.2d 108 [2007] ). [901 N.Y.S.2d 612] On appeal, defendants no longer seek a new trial on punitive damages in order to assess Officer Rivera's net worth. They also concede that......
  • Kadarko v. Lempke, 11 Civ. 3003 (KBF) (RLE)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 25, 2014
    ...to respond." Id. at 828. On May 27, 2010, the First Department affirmed petitioner's conviction and sentence. People v. Kadarko, 901 N.Y.S.2d 612 (1st Dep't 2010). On September 1, 2010, the New York Court of Appeals denied petitioner leave to appeal. People v. Kadarko, 901 N.Y.S.2d 612......
  • People v. Wrotten
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 2010
    ...(14 N.Y.3d at 40, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [emphasis added] ). Accordingly, I think it reasonable to conclude that the Court [73 A.D.3d 639] of Appeals regarded the finding that Supreme Court actually made as tantamount to a finding of “necessity.” On that assumption, I agree we sh......

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