People v. Kyser

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: People v. Kyser, 537 N.Y.S.2d 884, 147 A.D.2d 590 (N.Y. App. Div. 1989)
• Decision Date: 14 February 1989
• Parties: The PEOPLE, etc., Respondent, v. John KYSER, Appellant.

Page 884

537 N.Y.S.2d 884

147 A.D.2d 590

The PEOPLE, etc., Respondent, v. John KYSER, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 14, 1989.

Mariann Sullivan, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Nikki Kowalski, of counsel, Lindsay Brown, on the brief), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered October 30, 1984, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

With respect to the defendant's argument that he was foreclosed from testifying based upon the court's Sandoval ruling, we note that the prosecution may inquire as to the facts underlying a youthful offender adjudication to impeach the defendant's credibility as long as no mention is made as to the ultimate disposition (see, People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273; People v. Cook, 37 N.Y.2d 591, 376 N.Y.S.2d 110, 338 N.E.2d 619). The previous felony conviction as well as the youthful offender adjudication demonstrated the defendant's willingness to place his own interests ahead of those of society, thereby directly impacting upon the issue of his credibility (see, People v. Rahman, 46 N.Y.2d 882, 414 N.Y.S.2d 683, 387 N.E.2d 614; People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413; People v. Ortiz, 143 A.D.2d 107, 531 N.Y.S.2d 357), and the similarity between the prior crimes and the crime charged does not automatically preclude inquiry (see, People v. Rahman, supra; People v. Sandoval, supra ). The extent to which the prosecution should be allowed to impeach the credibility of a defendant is a matter of discretion for the hearing court, whose determination should not be disturbed absent an abuse of such discretion (see, People v. Williams, 56 N.Y.2d 236, 451 N.Y.S.2d 690, 436 N.E.2d 1292; People v. Bennette, 56 N.Y.2d 142, 451 N.Y.S.2d 647, 436 N.E.2d 1249; People v. Pollock, 50 N.Y.2d 547, 429 N.Y.S.2d 628, 407 N.E.2d 472).

With respect to the defendant's claim that the court should have charged the jury on the lesser included offense of attempted robbery in the second degree, we note that it is beyond cavil that to establish entitlement to a charge on a lesser included offense the defendant must show (1) that the additional offense is indeed a lesser included one and (2) that a reasonable view of the evidence would support a finding that he committed the lesser but not the greater offense (see, CPL 300.50; People v. Blim, 63 N.Y.2d 718, 480 N.Y.S.2d 192, 469 N.E.2d 513; People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376). In the instant case, the first prong of the test was satisfied as attempted robbery in the second degree is a lesser included offense of robbery in the second degree. The defendant has failed, however, to satisfy the second requirement. Viewing the evidence in the light most favorable to the defendant, a guilty verdict on the charge of attempted robbery in the second degree would have been unsupportable by any reasonable view of the evidence. The testimony given by the victim and his two friends, who were witnesses to the robbery, established that the defendant threatened...