People v. Teen

• Decision Date: 06 January 1994
• Citation: 606 N.Y.S.2d 922,200 A.D.2d 785
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert TEEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 922

606 N.Y.S.2d 922

200 A.D.2d 785

The PEOPLE of the State of New York, Respondent, v. Robert TEEN, Appellant.

Supreme Court, Appellate Division,

Third Department.

Jan. 6, 1994.

Frank Felleman, Woodbourne, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Gudesblatt Lamb, of counsel), Kingston, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered January 24, 1992, upon a verdict convicting defendant of the crimes of burglary in the third degree and criminal mischief in the third degree.

On May 17, 1991, shortly after 2:30 A.M., police officers responding to an audible burglary alarm from a pharmacy were hailed by a young woman who told them that she had observed a white male get up from the ground in front of the burglarized pharmacy. She gave a description and the route he followed from the pharmacy. The police left and apprehended defendant, who matched the witness's description. They returned defendant to a corner near the scene where the witness observed him seated in the rear of the police car in handcuffs and identified him as the man she had seen outside the pharmacy. Defendant was thereafter indicted for and convicted of burglary in the third degree and criminal mischief in the third degree. Defendant's pretrial motion to suppress evidence was denied. Defendant was sentenced as a second felony offender to concurrent prison terms of 3 1/2 to 7 years on the burglary conviction and 1 1/2 to 3 years on the criminal mischief conviction.

Defendant's contention that County Court erred in its prospective ruling allowing the prosecutor to question him concerning certain convictions (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), and that he was thereby deprived of his right to testify, is without merit. County Court ruled that defendant could be cross-examined as to whether he had been convicted (1) in 1979 for criminal possession of stolen property, (2) in 1979 of a felony (an attempted burglary--but not on the underlying facts), (3) in 1982 of criminal possession of stolen property in the third degree, (4) in 1984 of criminal possession of a forged instrument in the second degree (but not as to the underlying facts), and (5) in 1984 of a drug related offense (not contested on this appeal). County Court also ruled defendant could be asked whether his various arrests violated the terms of his parole and regarding his past drug addiction to demonstrate motive. Although some of these convictions were over 10 years old, " '[t]he age of conviction in and of itself does not preclude the prosecutor from using it to cross examine the defendant,' particularly where the court utilizes a Sandoval compromise" (People v. Zillinger, 179 A.D.2d 382, 578 N.Y.S.2d 153, lv. denied, 79 N.Y.2d 955, 583 N.Y.S.2d 209, 592 N.E.2d 817, quoting People v. Stringfellow, 176 A.D.2d 447, 448, 574 N.Y.S.2d 543; see, People v. Alhadi, 151 A.D.2d 873, 874, 543 N.Y.S.2d 175, lv. denied, 74 N.Y.2d 804, 546 N.Y.S.2d 562, 545 N.E.2d 876) and where, as in this case, defendant was incarcerated a portion of those years (see, People v. Ortiz, 156 A.D.2d 197, 198, 548 N.Y.S.2d 455, lv. denied, 76 N.Y.2d 739, 740, 558 N.Y.S.2d 900, 557 N.E.2d 1196; People v. Damon, 150 A.D.2d 479, 480, 541 N.Y.S.2d 82, lv. denied, 74 N.Y.2d 738, 545 N.Y.S.2d 112, 543 N.E.2d 755). Further, the theft-related offenses clearly go to credibility (see, People v. Hemingway, 152 A.D.2d 818, 820, 543 N.Y.S.2d 765, lv. denied, 74 N.Y.2d 810, 546 N.Y.S.2d 568, 545 N.E.2d 882; People v. Ashley, 145 A.D.2d 782, 782-783, 535 N.Y.S.2d 763). Questioning defendant as to his alleged prior drug addiction indicates a disposition to place his self-interest ahead of society's interests (see, People v. Duffy, 36 N.Y.2d 258, 262, 367 N.Y.S.2d 236, 326 N.E.2d 804). Inquiry as to defendant's alleged parole violations also indicates defendant's willingness to place his own interests above those of society. Thus, defendant has failed to demonstrate that County Court abused its discretion or deprived him of a fair trial in its Sandoval rulings.

Defendant's next contention, that County Court erroneously failed to instruct the jury on how they should evaluate the identification testimony received at trial, is rejected. This error was not preserved for appellate review by an objection to the charge as given or a request to charge (see, People v. Moore, 159 A.D.2d 521, 523, 552 N.Y.S.2d 389; see also, People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430). Moreover, County Court adequately advised the jurors on the identification issue in its general instructions on weighing credibility and in its charge on defendant's alibi defense, which emphasized that the People had the burden of proving both that defendant committed the crimes and was at the scene of the crime beyond a reasonable doubt (see, People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212). In addition to the witness's identification testimony, circumstantial evidence strongly connected defendant to the crimes (see, People v. Smith, 100 A.D.2d 857, 858, 474 N.Y.S.2d 104, lv. denied, 62 N.Y.2d 810, 477 N.Y.S.2d 1035, 465 N.E.2d 1278).

Defendant's argument that County Court erroneously refused to suppress identification testimony because it allegedly was made under unduly suggestive circumstances is not persuasive. Crime scene showups are...