PEOPLE v. CARMICHAEL

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

The PEOPLE, etc., Respondent, v. Drayvon CARMICHAEL, Appellant.

2017–05412

Decided: April 17, 2019

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ. Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered April 7, 2017, convicting him of identity theft in the first degree and criminal possession of a forged instrument in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt of identity theft in the first degree beyond a reasonable doubt (see People v. Roberts, 31 N.Y.3d 406, 417–425, 79 N.Y.S.3d 597, 104 N.E.3d 701; People v. Yuson, 133 A.D.3d 1221, 1221–1222, 20 N.Y.S.3d 263).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt of identity theft in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contentions regarding the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) are without merit.  Of the defendant's eight prior convictions, the court ruled it would allow the prosecutor to ask about the nature of and sentence for the defendant's prior convictions of robbery and petit larceny, and to ask whether the defendant had been convicted of a misdemeanor.  This ruling reflects an appropriate balance between the probative value of the defendant's prior crimes on the issue of his credibility and the risk of possible prejudice (see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Macaiba, 149 A.D.3d 651, 651, 52 N.Y.S.3d 365; People v. Vetrano, 88 A.D.3d 750, 750–751, 930 N.Y.S.2d 275).  The defendant failed to sustain his burden of demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that exclusion of the convictions was warranted (see People v. Vetrano, 88 A.D.3d at 750, 930 N.Y.S.2d 275).  In particular, “[c]onvictions involving theft are highly relevant to the issue of credibility because they demonstrate the defendant's willingness to deliberately further his self-interest at the expense of society” (People v. Hegdal, 266 A.D.2d 472, 473, 699 N.Y.S.2d 73; see People v. Vetrano, 88 A.D.3d at 750, 930 N.Y.S.2d 275).  Moreover, the fact that the crimes charged were similar in nature to the prior convictions, without more, did not warrant preclusion (see People v. Lombardo, 151 A.D.3d 887, 887, 58 N.Y.S.3d 401; People v. Hegdal, 266 A.D.2d at 473, 699 N.Y.S.2d 73).

The defendant's contention that the County Court imposed illegal consecutive sentences is without merit (see People v. Brahney, 29 N.Y.3d 10, 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349).  The defendant's contention that the court illegally imposed a sentence for a crime for which he was neither indicted nor convicted is unpreserved for appellate review and, in any event, without merit (see People v. Paddyfote, 107 AD3d 745, 745, 966 N.Y.S.2d 673).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

LEVENTHAL, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.

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