PEOPLE v. WILLIAMS (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered March 4, 2004, convicting him of attempted burglary in the third degree, criminal mischief in the third degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 At a pretrial hearing, the defendant requested an advance ruling that the court charge the jury on the justification defense.   However, after the court denied the application, the matter was not raised during trial, and the defendant did not object to the jury charge as given.   Consequently, the defendant's claim that he was entitled to a justification instruction is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  CPL 470.05[2] ).   In any event, there was no reasonable view of the evidence to support such a charge (see People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188;  People v. Musto, 243 A.D.2d 508, 508-509, 664 N.Y.S.2d 960;  People v. Bolton, 213 A.D.2d 660, 660-661, 624 N.Y.S.2d 210;  People v. Robinson, 195 A.D.2d 611, 611-612, 601 N.Y.S.2d 125).

 Contrary to the defendant's contention, the Supreme Court properly permitted the prosecutor to cross-examine the defendant on the underlying facts of his prior larcenous-type convictions, including, among others, burglary and attempted burglary.   Since the defendant raised and adduced evidence supporting the affirmative defense of duress, which undermined his criminal intent to commit the crimes charged, the People were properly permitted to rebut the defense with evidence of the defendant's criminal disposition or inconsistent intent (see People v. Calvano, 30 N.Y.2d 199, 205-206, 331 N.Y.S.2d 430, 282 N.E.2d 322;  People v. Maldonado, 5 A.D.3d 505, 506, 772 N.Y.S.2d 583;  People v. Stranton, 257 A.D.2d 583, 685 N.Y.S.2d 250).

 As a predicate felony finding is “binding upon that defendant in any future proceeding in which the issue may arise” (CPL 400.21[8] ), the court properly sentenced the defendant as a second felony offender based on its findings at a prior sentencing hearing that the defendant was a second felony offender based on a prior felony which qualified as a predicate felony, and that the prior convictions were not unconstitutionally obtained (see People v. Williams, 38 A.D.3d 576, 833 N.Y.S.2d 516, 2007 WL 678038 [2d Dept., Mar. 6, 2007];  see also People v. Huffman, 288 A.D.2d 907, 908, 732 N.Y.S.2d 391;  People v. Reed, 135 A.D.2d 585, 522 N.Y.S.2d 29;  People v. Lopez, 123 A.D.2d 360, 361, 506 N.Y.S.2d 371).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).