PEOPLE v. ORTIZ (2007)

Judgment, Supreme Court, New York County (Budd G. Goodman, J. at hearing;  Edward J. McLaughlin, J. at jury trial and sentence), rendered September 7, 2004, convicting defendant of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, and sentencing him, as a second felony offender, to consecutive terms of 15 years and 3 1/212 to 7 years, respectively, unanimously affirmed.

 The court properly exercised its discretion in precluding alibi testimony for failure to comply with the notice requirement of CPL 250.20(1), where counsel first sought leave to file an alibi notice on the eve of trial, without a showing of good cause.   Contrary to defendant's argument, the preclusion sanction contained in CPL 250.10(3) was clearly applicable.   The remedy of preclusion was also permissible under the federal standard (see Taylor v. Illinois, 484 U.S. 400, 414-415, 108 S.Ct. 646, 98 L.Ed.2d 798 [1988];  Noble v. Kelly, 246 F.3d 93, 98-100 [2d Cir.2000], cert. denied 534 U.S. 886, 122 S.Ct. 197, 151 L.Ed.2d 139 [2001] ).   The record supports the court's findings, made after a hearing, that the alibi was a product of fabrication and that the failure to provide timely notice was the product of willful conduct by defendant, his family and defense counsel (see People v. Batchilly, 33 A.D.3d 360, 821 N.Y.S.2d 597 [2006], lv. denied 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71 [2006];  People v. Walker, 294 A.D.2d 218, 219, 743 N.Y.S.2d 403 [2002], lv. denied 98 N.Y.2d 772, 752 N.Y.S.2d 13, 781 N.E.2d 925 [2002] ).   We reject defendant's argument that the court based its decision on its finding that the proposed alibi testimony, itself, was unworthy of belief, thereby acting as a gatekeeper and usurping the jury's function.   Instead, the court's ruling was based on the circumstances surrounding the late notice, and any credibility assessments it made were in that context.

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ).

 Regardless of whether the court erred in admitting the alleged hearsay testimony, any error would have been harmless because the testimony was relevant only to the charges on which the jury failed to reach a verdict and not to those on which it convicted defendant, which were fully supported by witness testimony (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

We perceive no basis for reducing defendant's sentence.   There is no merit to defendant's argument that the court misunderstood the applicable range of sentences.