PEOPLE v. TOSCA

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

The PEOPLE of the State of New York, Respondent, v. Edwin TOSCA, Defendant-Appellant.

Decided: October 16, 2001

ROSENBERGER, J.P., NARDELLI, ELLERIN, LERNER and SAXE, JJ. David S. Weisel, for Respondent. Melissa Rothstein, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Alexander Hunter, J.), rendered October 6, 1999, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 17 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 12 years to life, and otherwise affirmed.

 The court properly admitted police testimony that shortly before defendant's arrest a livery cab driver had reported an encounter with defendant involving a gun.   This testimony was necessary to complete the narrative and to explain the aggressive nature of the police confrontation with defendant (see, People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153;  People v. White, 250 A.D.2d 446, 673 N.Y.S.2d 13, lv. denied 92 N.Y.2d 908, 680 N.Y.S.2d 72, 702 N.E.2d 857;  People v. Browning, 225 A.D.2d 340, 638 N.Y.S.2d 628, lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 167, 670 N.E.2d 451).   Defendant's proffered stipulation that the police were simply responding to an unspecified radio run would have been inadequate, under the circumstances, to prevent the jury from speculating about facts not in evidence and from drawing unfair inferences concerning the officers' credibility.   Moreover, the evidence was not unduly prejudicial, particularly in view of the court's strong limiting instructions.   The evidence did not constitute hearsay or violate defendant's right of confrontation, since it was admitted for an appropriate purpose other than its truth (see, Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425).   Defendant's related claims concerning the prosecutor's summation do not warrant reversal since the challenged remarks were generally responsive to the defense summation, and since any undue prejudice was prevented by the court's prompt curative actions.

 The court's Sandoval ruling permitting inquiry into two attempted robbery convictions, including their underlying facts, as well as the underlying facts of a youthful offender adjudication for robbery, balanced the appropriate factors and was a proper exercise of discretion even when viewed in light of the previously discussed uncharged crimes ruling (see, People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Mattiace, 77 N.Y.2d 269, 275-276, 567 N.Y.S.2d 384, 568 N.E.2d 1189;  People v. Glenn, 282 A.D.2d 243, 725 N.Y.S.2d 295, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 37, 754 N.E.2d 1120).

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844).

We find the sentence excessive to the extent indicated.