Opinion
2013-09657, Ind. No. 1376/12.
10-18-2017
The PEOPLE, etc., respondent, v. Rudolph KAVAL, appellant.
Malvina Nathanson, New York, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.
Malvina Nathanson, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Deborah E. Wassel of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, and ANGELA G. IANNACCI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Margulis, J.), rendered October 8, 2013, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence upon his adjudication as a persistent violent felony offender.
ORDERED that the judgment is modified, on the law, by vacating the defendant's adjudication as a persistent violent felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) was a provident exercise of discretion. The court balanced the relevant factors, formulated an appropriate compromise (see People v. Harris, 129 A.D.3d 990, 992, 13 N.Y.S.3d 443 ; People v. English, 119 A.D.3d 706, 707, 988 N.Y.S.2d 697 ), and properly determined that the prior crimes were probative of the defendant's veracity because they indicated his willingness to put his own interests above those of society (see People v. Sandoval, 34 N.Y.2d at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ; People v. Harris, 129 A.D.3d at 992, 13 N.Y.S.3d 443 ; People v. Quezada, 116 A.D.3d 796, 983 N.Y.S.2d 326 ).
Contrary to the defendant's contention, the Supreme Court properly allowed the People to introduce evidence in rebuttal to the defendant's defense of temporary lawful possession (see People v. Cade, 73 N.Y.2d 904, 905, 539 N.Y.S.2d 287, 536 N.E.2d 616 ; People v. Morin, 146 A.D.3d 901, 45 N.Y.S.3d 512 ; People v. Brown, 240 A.D.2d 281, 659 N.Y.S.2d 746 ; People v. Knight, 173 A.D.2d 736, 570 N.Y.S.2d 617, affd. 80 N.Y.2d 845, 587 N.Y.S.2d 588, 600 N.E.2d 219 ).
The defendant's contention that the Supreme Court erred in not giving a curative instruction upon the prosecutor's cross-examination regarding defense witnesses' failure to come forward with exculpatory information prior to trial is unpreserved for appellate review given his failure to object to this line of questioning and his failure to request such instruction at trial (see CPL 470.05[2] ; People v. Santiago, 118 A.D.3d 1163, 987 N.Y.S.2d 692 ). In any event, contrary to the defendant's contention, the prosecutor established a proper foundation to inquire pursuant to People v. Dawson , 50 N.Y.2d 311, 321, 428 N.Y.S.2d 914, 406 N.E.2d 771 and, to the extent the prosecutor improperly referenced one defense witness's failure to come forward during grand jury proceedings, that reference was an isolated instance which was not so misleading as to warrant reversal (see id. at 323–324, 428 N.Y.S.2d 914, 406 N.E.2d 771 ). Moreover, the defendant was not denied effective assistance of counsel based on counsel's failure to preserve this issue for appeal (see People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883 ).
The defendant's contention that certain comments made by the prosecutor during summations were improper and deprived him of a fair trial are unpreserved for appellate review since he either failed to timely object to the remarks he now challenges or made only general objections (see CPL 470.05 [2 ]; People v. Arena, 70 A.D.3d 1044, 1047, 895 N.Y.S.2d 514 ). In any event, the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Guzman, 138 A.D.3d 1140, 1140, 31 N.Y.S.3d 146 ; People v. Ramrattan, 126 A.D.3d 1013, 1014, 6 N.Y.S.3d 131 ), or a fair response to defense counsel's summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Johnson, 127 A.D.3d 1234, 1234, 5 N.Y.S.3d 902 ), or do not otherwise require reversal (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; cf. People v. Ashwal, 39 N.Y.2d 105, 110–111, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Rivera, 128 A.D.3d 857, 858, 9 N.Y.S.3d 119 ). The defendant is correct, however, that the Supreme Court erred in adjudicating him a persistent violent felony offender pursuant to Penal Law § 70.08. As the People correctly concede, the sum of the defendant's incarceration dates did not amount to a sufficient tolling period so as to qualify a May 27, 1987, conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing.