People v. Rosado

• Decision Date: 19 March 2014
• Citation: 115 A.D.3d 884,982 N.Y.S.2d 364,2014 N.Y. Slip Op. 01775
• Parties: The PEOPLE, etc., respondent, v. Nicholas ROSADO, appellant.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 884

982 N.Y.S.2d 364

2014 N.Y. Slip Op. 01775

The PEOPLE, etc., respondent,

v.Nicholas ROSADO, appellant.

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

March 19, 2014.

Lynn W.L. Fahey, New York, N.Y. (Sarah K. Hook of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and George E. Spencer of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered January 25, 2012, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's challenge to the trial court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit. The defendant failed to meet his burden of demonstrating that the prejudicial effect of admitting evidence regarding his prior convictions so outweighed the probative worth of that evidence that exclusion was warranted ( see id. at 378, 357 N.Y.S.2d 849, 314 N.E.2d 413;People v. Harris, 74 A.D.3d 984, 984–985, 902 N.Y.S.2d 190). The prior offenses bore directly upon the defendant's veracity and willingness to place his interests above those of society ( see People v. Fotiou, 39 A.D.3d 877, 878, 834 N.Y.S.2d 319;People v. McLaurin, 33 A.D.3d 819, 826 N.Y.S.2d 279). The mere fact that the prior convictions into which inquiry was permitted were similar or even identical in nature to the instant offenses did not warrant their preclusion ( see People v. Dahlbender, 23 A.D.3d 493, 494, 805 N.Y.S.2d 597;People v. Pender, 221 A.D.2d 573, 633 N.Y.S.2d 830;People v. Torres, 110 A.D.2d 794, 795, 487 N.Y.S.2d 859). By precluding the prosecutor from eliciting the underlying facts of the defendant's convictions, the Supreme Court avoided any undue prejudice to the defendant ( see People v. Thompson, 99 A.D.3d 819, 951 N.Y.S.2d 754;People v. Myron, 28 A.D.3d 681, 683, 814 N.Y.S.2d 198,cert. denied549 U.S. 1326, 127 S.Ct. 1919, 167 L.Ed.2d 572). Moreover, the fact that one of the convictions was remote does not, in and of itself, require preclusion of that conviction for impeachment purposes ( see People v. Fotiou, 39 A.D.3d at 878, 834 N.Y.S.2d 319;People v. Myron, 28 A.D.3d at 683, 814 N.Y.S.2d 198).

The defendant waived his contention regarding the Supreme Court's participation in reading back certain trial testimony by expressly consenting,...