People v. Nunez

• Decision Date: 19 April 2018
• Docket Number: 109282
• Citation: 160 A.D.3d 1225,75 N.Y.S.3d 336
• Parties: The PEOPLE of the State of New York, Respondent, v. Gilberto A. NUNEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1225
75 N.Y.S.3d 336

The PEOPLE of the State of New York, Respondent,
v.
Gilberto A. NUNEZ, Appellant.

109282

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

Calendar Date: February 20, 2018
Decided and Entered: April 19, 2018

Miedel & Mysliwiec LLP, New York City (Florian Miedel of counsel), for appellant.

David M. Hoovler, District Attorney, Goshen (Robert H. Middlemiss of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 7, 2017, upon a verdict convicting defendant of the crimes of grand larceny in the third degree, insurance fraud in the third degree and falsifying business records in the first degree (five counts).

75 N.Y.S.3d 337

Defendant was charged by indictment with grand larceny in the third degree, insurance fraud in the third degree and five counts of falsifying business records in the first degree stemming from allegations that he fraudulently obtained monetary proceeds from a business owner's insurance policy. Following a jury trial, defendant was convicted as charged and sentenced to an aggregate prison term of 1 to 3 years, to be served consecutively to the 1? to 4–year sentence imposed upon his recent convictions in an unrelated matter ( People v. Nunez, 160 A.D.3d 1227, 75 N.Y.S.3d 333, 2018 WL 1864619 [ decided herewith] ).¹ He now appeals.

By failing to object to County Court's Sandoval ruling prior to the close of the Sandoval hearing, defendant did not preserve his present challenge to that ruling for our review (see People v. Stacconi, 151 A.D.3d 1395, 1397, 58 N.Y.S.3d 201 [2017] ; People v. Ramos, 129 A.D.3d 1205, 1207, 10 N.Y.S.3d 736 [2015], lv denied 26 N.Y.3d 971, 40 N.E.3d 585 [2015] ; People v. Burch, 97 A.D.3d 987, 990, 948 N.Y.S.2d 742 [2012], lv denied 19 N.Y.3d 1101, 955 N.Y.S.2d 556, 979 N.E.2d 817 [2012] ). Were we to consider the issue, we would find it to be without merit. The prior convictions at issue were recent, not too similar to the charged crimes and were probative of defendant's credibility and willingness to place his own interests above those of society (see People v. Capers, 129 A.D.3d 1313, 1317, 12 N.Y.S.3d 317 [2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016] ; People v. Rockwell, 18 A.D.3d 969, 970–971, 794 N.Y.S.2d 726 [2005], lv denied 5 N.Y.3d 768, 801 N.Y.S.2d 262, 834 N.E.2d 1272 [2005] ; People v. Perry, 221 A.D.2d 736, 737–738, 633 N.Y.S.2d 848 [1995], lv denied 87 N.Y.2d 1023, 644 N.Y.S.2d 157, 666 N.E.2d 1071 [1996] ). Further, County Court properly precluded any mention of the underlying facts in order to minimize any undue prejudice. Inasmuch as County Court appropriately balanced the probative value of the prior convictions against the risk of prejudice to defendant, we would find no abuse of discretion in its Sandoval ruling (see People v. Keener, 152 A.D.3d 1073, 1074, 61 N.Y.S.3d 158 [2017] ; People v. Cooley, 149 A.D.3d 1268, 1270–1271, 52 N.Y.S.3d 528 [2017], lvs denied 30 N.Y.3d 979, 981, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017] ).

Similarly unpreserved for our review is defendant's assertion that, in imposing the sentence, County Court improperly considered the murder charge of which he had been acquitted following a separate jury trial just months earlier (see CPL 470.05[2] ; People v. Hooks, 148 A.D.3d 930, 931–932, 49 N.Y.S.3d 499 [2017], lv denied 29 N.Y.3d 1081, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; People v. Guerrero, 129 A.D.3d 1102, 1103, 12 N.Y.S.3d 272 [2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ). In any event, the court twice confirmed at sentencing that it would not consider the murder victim's death in determining defendant's sentence. Instead, County Court expressly stated that the sentence imposed was based on defendant's deceptive and fraudulent conduct, as well as his lack of remorse. Viewing County Court's comments as a whole, we would find that "[t]he court did not base its sentence on a crime of which defendant had been acquitted, but rather sentenced him based on all the relevant facts and circumstances surrounding the crime[s] of

75 N.Y.S.3d 338

which he was...