PEOPLE v. ROUSE (2004)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of robbery in the second degree (Penal Law § 160.10 [1] ) and grand larceny in the fourth degree (§ 155.30[5] ).   We reject defendant's contention that the jury failed to give the evidence the weight it should be accorded on the issue of identification (see People v. Prince, 5 A.D.3d 1098, 773 N.Y.S.2d 325;  People v. Gray, 278 A.D.2d 833, 718 N.Y.S.2d 779, lv. denied 97 N.Y.2d 656, 737 N.Y.S.2d 57, 762 N.E.2d 935;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We reject the further contention of defendant that County Court erred in refusing to allow him to call as a witness a codefendant who had entered a guilty plea for his role in the robbery but had not yet been sentenced.   It is well settled that a codefendant awaiting sentence is entitled to assert his privilege against self-incrimination, and here the attorney for the codefendant informed the court that the codefendant would assert that privilege if called as a witness (see People v. Sobotker, 61 N.Y.2d 44, 48, 471 N.Y.S.2d 78, 459 N.E.2d 187;  People v. Delgado, 287 A.D.2d 327, 328, 731 N.Y.S.2d 31, lv. denied 97 N.Y.2d 703, 739 N.Y.S.2d 104, 765 N.E.2d 307).   The court's Sandoval ruling does not constitute an abuse of discretion.   In allowing questioning concerning the facts and circumstances underlying a prior burglary conviction, the court properly “weighed appropriate concerns and limited both the number of convictions and the scope of permissible cross-examination” (People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: