People v. Perez

• Decision Date: 11 May 1987
• Citation: 515 N.Y.S.2d 303,130 A.D.2d 595
• Parties: The PEOPLE, etc., Respondent, v. Jose PEREZ, a/k/a Alberto Davis, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 303

515 N.Y.S.2d 303

130 A.D.2d 595

The PEOPLE, etc., Respondent, v. Jose PEREZ, a/k/a Alberto Davis, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 11, 1987.

Tom Gass, New York City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Randi Fleishman, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment and amended judgment of the Supreme Court, Queens County (Gallagher, J.), both rendered June 1, 1984, convicting him of criminal possession of a weapon in the second degree under Indictment No. 3249/83, upon a jury verdict, and adjudicating him to be in violation of his probation under Indictment No. 2240/82, after a hearing, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant contends that the trial court improperly denied his motion to prevent the prosecutor from cross-examining him, should he choose to testify, as to a prior conviction for the crime of attempted robbery in the third degree. Inasmuch as the prior conviction involved a situation where the defendant expressed a willingness to place his own self-interest ahead of that of society, the trial court did not abuse its discretion in denying the motion (see, People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413). Moreover, since the facts of the instant crime and of the prior crime were not similar, we find that the court's ruling did not prevent the defendant from testifying at trial (see, People v. Cuesta, 119 A.D.2d 688, 500 N.Y.S.2d 811; People v. Williams, 108 A.D.2d 767, 484 N.Y.S.2d 926).

We further find the People proved the defendant's guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt. The testimony of three eyewitnesses was sufficient to establish that the defendant possessed the subject revolver. The testimony of the ballistics expert demonstrated that the gun was loaded with ammunition (cf. People v. Shaffer, 66 N.Y.2d 663, 495 N.Y.S.2d 965, 486 N.E.2d 823). Therefore, the People proved that the defendant knowingly possessed a loaded weapon with the intent to use it unlawfully against another (see, Penal Law §§ 265.03, 265.00[15] ).

Finally, there is no basis to disturb the sentence imposed. [See, 125 Misc.2d 15, 479 N.Y.S.2d 414.]