Opinion
2012-10-17
The PEOPLE, etc., respondent, v. Rafael COSME, appellant.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Anthea H. Bruffee, and Shannon Hanson [Clifford Chance US, LLP], of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, Anthea H. Bruffee, and Shannon Hanson [Clifford Chance US, LLP], of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered February 4, 2010, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence upon his adjudication as a second violent felony offender.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant's adjudication as a second violent felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County for resentencing in accordance herewith.
The defendant's challenge to the trial court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit. The defendant failed to meet his burden of demonstrating that the prejudicial effect of cross-examination regarding certain prior convictions so outweighed the probative worth of that evidence that exclusion was warranted ( see id. at 378, 357 N.Y.S.2d 849, 314 N.E.2d 413;People v. Harris, 74 A.D.3d 984, 984–985, 902 N.Y.S.2d 190). The trial court's “Sandoval compromise” ( People v. Smith, 18 N.Y.3d 588, 597–599, 942 N.Y.S.2d 5, 965 N.E.2d 232 [Pigott, J., concurring] ), therefore, was not an improvident exercise of discretion ( see People v. Harris, 74 A.D.3d at 984–985, 902 N.Y.S.2d 190;People v. White, 60 A.D.3d 1095, 1096, 877 N.Y.S.2d 339).
The defendant's claim of error regarding the trial court's handling of a jury note, raised in his pro se supplemental brief, does not constitute a mode of proceedings error ( see People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387), and therefore requires preservation as a question of law (see CPL 470.05[2]; People v. Gerrara, 88 A.D.3d 811, 812–813, 930 N.Y.S.2d 646;cf. People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189). The defendant failed to preserve his claim for appellate review ( see People v. Gerrara, 88 A.D.3d at 813, 930 N.Y.S.2d 646), and we decline to review it in the exercise of our interest of justice jurisdiction ( id.).
As the People correctly concede, the defendant's prior conviction under the federal bank robbery statute ( see18 USC § 2113), does not constitute a predicate violent felony conviction ( seePenal Law § 70.04[1][b][i]; People v. Walker, 185 A.D.2d 951, 952, 587 N.Y.S.2d 992;People v. Sellers, 168 A.D.2d 583, 583–584, 562 N.Y.S.2d 799). Although the defendant did not preserve for appellate review his contention that he was improperly adjudicated as a second violent felony offender based upon that federal conviction, we review his present claim as a matter of discretion in the interest of justice ( see People v. Horvath, 81 A.D.3d 850, 851, 916 N.Y.S.2d 230). In so doing, we vacate the defendant's adjudication as a second violentfelony offender and the sentence imposed thereon, and remit the matter for resentencing ( see id.; Penal Law § 70.06[1][b][i] ).