PEOPLE v. GALBERTH

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Gregory GALBERTH, Defendant-Appellant.

Decided: January 20, 2005

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, SWEENY, CATTERSON, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Gliner of counsel), for respondent.

Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J. on dismissal motion;  John A.K. Bradley, J. at jury trial and sentence), rendered January 22, 2003, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed.

 The court properly denied defendant's CPL 190.50(5) motion to dismiss the indictment.   There was no violation of defendant's right to testify before the grand jury, because the record establishes that on the day that defendant was scheduled to testify, the court, at defense counsel's request, properly ordered a psychiatric examination under CPL article 730.   Therefore, the People were entitled to complete the grand jury presentation without defendant's testimony (730.40[3];  People v. Peterson, 11 A.D.3d 336, 784 N.Y.S.2d 29 [2004] ).   The court's order caused the statutory exception to become applicable, and the fact that the examination was delayed as a result of a clerk's failure to complete paperwork does not warrant a different conclusion.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of any conflicts in testimony.   The evidence warrants the inference that defendant used physical force against the victim in order to help his accomplice retain possession of the stolen property, and that defendant thus shared his accomplice's intent to commit robbery (see People v. Green, 277 A.D.2d 82, 716 N.Y.S.2d 22 [2000], lv. denied 96 N.Y.2d 784, 725 N.Y.S.2d 648, 749 N.E.2d 217 [2001];  see also People v. Durden, 5 A.D.3d 333, 775 N.Y.S.2d 248 [2004], lv. denied 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469 [2004] [codefendant's case] ).

 The Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ).   The court permitted inquiry as to a portion of defendant's very extensive criminal history, and the prior convictions and their underlying facts were relevant to defendant's credibility since they tended to show that he placed his own interests above those of society.   Moreover, defendant did not demonstrate, as he now urges, that such evidence would have been inflammatory.

We perceive no basis for a reduction in sentence.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.