People v. Rockwell, 15130.

• Decision Date: 12 May 2005
• Docket Number: 15130.
• Citation: 18 A.D.3d 969,794 N.Y.S.2d 726,2005 NY Slip Op 03907
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AARONA N. ROCKWELL, Appellant.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 969

794 N.Y.S.2d 726

2005 NY Slip Op 03907

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AARONA N. ROCKWELL, Appellant.

15130.

Appellate Division of the Supreme Court of the State of New York, Third Department.

May 12, 2005.

Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered October 3, 2003, upon a verdict convicting defendant of the crimes of forgery in the second degree and criminal possession of a forged instrument in the second degree.

Mugglin, J.

In April 2000, upon opening a checking account at Central National Bank in the Town of Norwich, Chenango County, defendant was given a starter kit of checks to use until her personalized checks could be printed. On one of these checks, someone handprinted "J.J. Painting, Inc." as the purported owner of the account. The check was drawn payable to "cash" in the amount of $475 and was signed by "J. Hutley." The check was used on May 16, 2000 at a convenience store to obtain approximately $300 in cigarettes and the balance in cash. Although defendant thereafter reported to the bank that one of her starter kit checks had been stolen, she was identified by three of the convenience store employees—who were each shown a photograph depicting only defendant—as the person who had negotiated the check. As the check was dishonored for insufficient funds, defendant was indicted and convicted of forgery in the second degree and criminal possession of a forged instrument in the second degree. She was thereafter sentenced to concurrent prison terms of 3 to 6 years. On this appeal, defendant raises four arguments.

Initially, we reject defendant's contention that County Court erred by failing to preclude all identification evidence. Although the People conceded that the single photo identification procedure employed was impermissively suggestive, they argue, and we agree, that suppression of all identification evidence is not required where the identification has a separate, independent basis (see People v Parker [Charleston], 257 AD2d 693, 694 [1999], lvs denied 93 NY2d 1015, 1024 [1999]). Here, County Court determined, after a Wade hearing, that an adequate independent basis existed for the in-court identification of defendant by the three store employees. Notably, the transaction took place in the middle of the afternoon and in a well lit area. Each identifying store employee observed defendant for up to 20 minutes and each specifically recalled the transaction due to its length—occasioned by the necessity of locating an assistant store manager to obtain authorization to accept the check—and the size and unusual nature of the transaction. Further, one store employee had prior dealings with defendant and was called upon to vouch for her in the check-cashing process. These facts amply support County Court's determination that the People established, by clear and convincing evidence, that there existed an independent basis for identification of defendant untainted by the impermissible identification procedure (see People v Durham, 235 AD2d 850, 850-851 [1997]).

Next, there is no merit to defendant's challenge to the Sandoval ruling made by County Court. In this regard, although defendant has a lengthy criminal history, County Court limited cross-examination to five specific prior convictions. On appeal, defendant challenges only that portion of the Sandoval ruling which allowed the People to use the underlying facts of a 1991 conviction for possession of a forged instrument, contending that it was both too remote in time and too similar to the instant charge. The use of such a prior conviction is subject to a pretrial discretionary determination in which the trial court balances the probative value of the prior conviction on the issue of credibility against the prejudicial effect and possibility that defendant could be convicted simply based on a perceived propensity to commit crime (see People v Di Bella, 277 AD2d 699, 701 [2000], lv denied 96 NY2d 758 [2001]). In striking the required balance, the court is not bound by per se fixed rules (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Jackson, 302 AD2d 748, 750 [2003], lv denied 100 NY2d 539 [2003]; People v Layman, 284 AD2d 558, 560 [2001], lv denied 96 NY2d 903 [2001]), including no strict prohibition concerning the use of a prior conviction simply because it is similar to the crime presently charged (see e.g. People v Mattiace, 77 NY2d 269, 275-276 [1990]; People v Rahman, 46 NY2d 882, 883 [1979]), or because it may be remote in time, particularly where the crime involves dishonesty and has great relevance to defendant's veracity and willingness to place her own self-interest over that of society (see People v Redcross, 246 AD2d 838, 840 [1998], lv...