THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DIALLO HAMMOND DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[4] ), robbery in the second degree (§ 160.10[1] ), and criminal possession of stolen property in the fifth degree (§ 165.40), defendant contends that reversal is required inasmuch as he proved the affirmative defense of duress pursuant to Penal Law § 40.00(1) as a matter of law.   Although the People are incorrect that defendant failed to preserve his contention for our review (see People v. Gray, 86 N.Y.2d 10, 19;  People v. Bastidas, 67 N.Y.2d 1006, 1007, rearg. denied 68 N.Y.2d 907), we nevertheless conclude that defendant's contention lacks merit.   The jury was entitled to discredit defendant's self-serving statements that he was coerced into committing the crimes of which he was convicted (see People v. McKinnon, 78 AD3d 864, lv denied 16 NY3d 744) and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the jury's rejection of that defense is not against the weight of the evidence (see id.;  People v. Zilberman, 297 A.D.2d 517, 518, lv denied 99 N.Y.2d 566;  see generally People v. Bleakley, 69 N.Y.2d 490, 495).

We reject the further contention of defendant that Supreme Court's Sandoval ruling constitutes an abuse of discretion.   The similarity between the prior convictions and the instant crimes does not by itself preclude cross-examination concerning those prior convictions (see People v. Hayes, 97 N.Y.2d 203, 206), and here the prior convictions either concern defendant's credibility or are indicative of his willingness to place his own interests above those of society (see People v. Arguinzoni, 48 AD3d 1239, 1240–1241, lv denied 10 NY3d 859;  People v. Rupnarain, 299 A.D.2d 498, lv denied 99 N.Y.2d 619;  People v. Freeney, 291 A.D.2d 913, 914, lv denied 98 N.Y.2d 637).

Defendant correctly concedes that he failed to preserve for our review his contention with respect to alleged prosecutorial misconduct (see CPL 470.05 [2] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Additionally, we reject defendant's contention that the court committed reversible error based on the manner in which it responded to two jury notes (see generally People v. O'Rama, 78 N.Y.2d 270, 277–278).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court