PEOPLE v. HERNANDEZ (2023)

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered April 20, 2017, convicting defendant, after a jury trial, of robbery in the first degree and two counts of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed. The court's Sandoval ruling, which precluded inquiry into a large part of defendant's criminal record, balanced the appropriate factors and was a proper exercise of discretion (see People v. Smith, 18 N.Y.3d 588, 593–594, 942 N.Y.S.2d 5, 965 N.E.2d 232 [2012];  People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983]).  The court providently exercised its discretion in permitting inquiry into defendant's 1997 robbery conviction, notwithstanding its similarity to the present offense, and in permitting carefully limited inquiry into sexual abuse committed at the time of the robbery, because these acts demonstrated defendant's willingness to place his own interests above those of society.

The conviction was not remote in time, especially because of defendant's lengthy intervening incarceration.  In any event, any error in this ruling was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  see also People v. Grant, 7 N.Y.3d 421, 425, 823 N.Y.S.2d 757, 857 N.E.2d 52 [2006]).  Defendant did not preserve his claim that the ruling deprived him of his right to testify and present a defense, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits (see Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 [1984]).

The court also providently exercised its discretion when it granted the People's request that defendant be directed to remove his glasses before the victim was asked to make an in-court identification, and this did not render the identification unduly suggestive or otherwise cause any prejudice.  This action tended to ensure that the in-court identification was reliable, because the glasses appeared to be obscuring defendant's face, and the perpetrator had not worn glasses (see People v. Perry, 251 A.D.2d 895, 897, 674 N.Y.S.2d 844 [3d Dept. 1998], lv denied 94 N.Y.2d 827, 702 N.Y.S.2d 598, 724 N.E.2d 390 [1999];  People v. Green, 121 A.D.2d 739, 739–40, 504 N.Y.S.2d 460 [2d Dept. 1986], lv denied 68 N.Y.2d 813, 507 N.Y.S.2d 1030, 499 N.E.2d 879 [1986]).  We note that in identification procedures, a suspect may be required, where appropriate, to make a change of appearance in aid of a reliable identification (see e. g. Matter of Ford v. Kreindler, 206 A.D.2d 425, 614 N.Y.S.2d 439 [2d Dept. 1994][shaving beard before lineup];  People v. La Placa, 127 A.D.2d 610, 511 N.Y.S.2d 410 [2d Dept. 1987][same]).  In any event, any error was harmless. There was ample evidence of defendant's identity, including the victim's lineup identification of defendant and surveillance video in which defendant's face, without glasses, was visible.

The court correctly adjudicated defendant a persistent violent felony offender.  A presentence period of incarceration on his 1991 conviction tolled the 10–year lookback period, and his arguments to the contrary are unavailing (see People v. Cortez, 231 A.D.2d 450, 451, 647 N.Y.S.2d 206 [1st Dept. 1996], lv denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996];  see also People v. Anonymous, 158 A.D.3d 577, 578, 71 N.Y.S.3d 460 [1st Dept. 2018], lv denied 31 N.Y.3d 1077, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018]).