PEOPLE v. FULLER (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal mischief in the third degree (Penal Law § 145.05[2]).  Defendant contends that County Court erred in ruling, as part of a Sandoval compromise, that the People would be allowed, if defendant chose to testify, to cross-examine him fully regarding his prior felony conviction of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511[3][a][ii];  [b]).  Initially, contrary to the People's assertion, defendant's contention is preserved for our review.  Defendant expressly requested, without success on the ground now advanced on appeal, a ruling that the People not be permitted to cross-examine him regarding the prior conviction, and he “is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule ․ accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered” (CPL 470.05[2];  see People v. Pritchard, 149 A.D.3d 1479, 1479–1480, 52 N.Y.S.3d 595 [4th Dept. 2017];  People v. Lessane, 142 A.D.3d 562, 563, 36 N.Y.S.3d 231 [2d Dept. 2016]).  We nevertheless conclude that defendant's contention lacks merit.  “The extent to which prior convictions bear on the issue of a defendant's credibility is a question entrusted to the sound discretion of the court, reviewable only for clear abuse of discretion” (People v. Williams, 98 A.D.3d 1234, 1235, 951 N.Y.S.2d 281 [4th Dept. 2012], lv denied 21 N.Y.3d 947, 968 N.Y.S.2d 10, 990 N.E.2d 144 [2013] [internal quotation marks omitted]), and there was no such abuse of discretion here (see People v. Newland, 83 A.D.3d 1202, 1203, 921 N.Y.S.2d 396 [3d Dept. 2011], lv denied 17 N.Y.3d 798, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011];  People v. Pomales, 49 A.D.3d 962, 964, 853 N.Y.S.2d 407 [3d Dept. 2008], lv denied 10 N.Y.3d 938, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008];  People v. Brown, 39 A.D.3d 1207, 1207, 834 N.Y.S.2d 766 [4th Dept. 2007], lv denied 9 N.Y.3d 921, 844 N.Y.S.2d 176, 875 N.E.2d 895 [2007]).  Defendant's additional contention that the court should have conducted an evidentiary hearing regarding his explanation for the prior conviction is not preserved for our review (see CPL 470.05[2];  People v. Jackson, 221 A.D.2d 254, 255, 635 N.Y.S.2d 463 [1st Dept. 1995], lv denied 87 N.Y.2d 974, 642 N.Y.S.2d 203, 664 N.E.2d 1266 [1996];  People v. Henderson, 212 A.D.2d 1031, 1031–1032, 623 N.Y.S.2d 677 [4th Dept. 1995], lv denied 86 N.Y.2d 736, 631 N.Y.S.2d 616, 655 N.E.2d 713 [1995]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a]).

Finally, viewing the evidence in light of the elements of criminal mischief in the third degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see People v. Miranda, 119 A.D.3d 1421, 1421–1422, 989 N.Y.S.2d 563 [4th Dept. 2014], lv denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 [2014];  see also People v. De Chellis, 265 A.D.2d 735, 735, 697 N.Y.S.2d 711 [3d Dept. 1999];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).