PEOPLE v. HERRERA (1997)

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered April 13, 1993, convicting defendant, after a jury trial, of murder in the second degree and arson in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 25 years to life and 12 1/2 to 25 years, respectively, unanimously affirmed.

The court properly admitted testimony that defendant made a threatening gesture to a prosecution witness during a break in that witness's testimony (People v. Plummer, 36 N.Y.2d 161, 365 N.Y.S.2d 842, 325 N.E.2d 161).   The throat-slitting gesture was highly probative of defendant's consciousness of guilt and was admissible irrespective of the possibility of innocent explanations (People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626, 196 N.E.2d 263).

The defendant's claim on appeal concerning the court's Sandoval ruling is unpreserved and we decline to review it.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.