PEOPLE v. JACKSON (2007)

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered June 18, 2004, convicting defendant, after a jury trial, of enterprise corruption, conspiracy in the fourth degree, burglary in the second degree, grand larceny in the second degree, criminal possession of stolen property in the second degree, and two counts of perjury in the first degree, and sentencing him, as a persistent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

 The court properly modified its Sandoval ruling to permit the People to inquire about three prior burglaries committed by defendant, when defendant's testimony misleadingly implied that he was a naive novice at the time a codefendant had propositioned him to be a lookout in a burglary that the prosecutor had inquired into under the original Sandoval ruling (see People v. Salvadon, 11 A.D.3d 334, 782 N.Y.S.2d 743 [2004], lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143 [2005];  People v. Nieves, 282 A.D.2d 342, 723 N.Y.S.2d 642 [2001] ).   In any event, were we to find that the court erred by making this modification, we would find the error harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 240-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

 The court properly permitted the prosecutor to impeach defendant's trial testimony by means of portions of his grand jury testimony, including significant omissions, since the circumstances were such as to raise a jury question as to whether there was an inconsistency (see People v. Bruno, 34 A.D.3d 220, 823 N.Y.S.2d 144 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 491, 864 N.E.2d 621 [2007];  People v. Montalvo, 285 A.D.2d 384, 728 N.Y.S.2d 448 [2001], lv. denied 96 N.Y.2d 941, 733 N.Y.S.2d 381, 759 N.E.2d 380 [2001];  compare People v. Bornholdt, 33 N.Y.2d 75, 88, 350 N.Y.S.2d 369, 305 N.E.2d 461 [1973], cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 [1974] ).   Defendant was free to argue that there was no inconsistency, and were we to find any error we would once again find it harmless.

 The court properly admitted evidence that a jointly tried codefendant had threatened a witness during the trial.   Such evidence was “highly probative” of that codefendant's consciousness of guilt (People v. Rosario, 309 A.D.2d 537, 538, 765 N.Y.S.2d 320 [2003], lv. denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908 [2003] ), and the court's thorough instructions were sufficient to prevent any prejudice to defendant.   The court also properly denied defendant's severance motion.

We perceive no basis for reducing the sentence.   Defendant's sentencing as a discretionary persistent felony offender was constitutional (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 [2005], cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473 [2005] ).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Defendant's remaining pro se argument is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find it without merit.