The People, Respondent,v.Lawrence Parker, Appellant.BriefN.Y.March 20, 2018To be argued by REBECCA L. JOHANNESEN _______________________________________________________ New York Supreme Court Appellate Division: First Department ___________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LAWRENCE PARKER, Defendant-Appellant. ___________________________________________ ______________________________ R E S P O N D E N T’ S B R I E F ______________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 718-838-6239 Johanner@bronxda.nyc.gov NANCY D. KILLIAN REBECCA L. JOHANNESEN Assistant District Attorneys of counsel _______________________________________________________ PRINTED ON RECYCLED PAPER ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATEMENT ............................................................................................................ 1 QUESTIONS PRESENTED ...................................................................................... 2 THE FACTS The Indictment ................................................................................................. 3 The Suppression Hearing ................................................................................. 3 The Trial……………………………………………………………………..9 The People's Case .................................................................................. 9 The Defense Case……………………………………………..……..20 ARGUMENT POINT I POLICE ACTED WITH LAWFUL AUTHORITY WHEN THEY STOPPED AND DETAINED DEFENDANT ..................................20 POINT II THE COURT DID NOT ABUSE ITS DISCRETION TO THE EXTENT THAT IT GRANTED THE PEOPLE'S SANDOVAL APPLICATION .............................................................................................30 CONCLUSION ........................................................................................................41 PRINTING SPECIFICATIONS STATEMENT .....................................................42 iii TABLE OF AUTHORITIES Federal Cases Elkins v. United States, 364 U.S. 206 (1960) ..........................................................21 United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ...........................................27 United States v. Cortez, 449 U.S. 411 (1981) ..........................................................21 State Cases In Re Steven McC., 304 A.D.2d 68 (1st Dept. 2003) ........................................ 22, 27 Matter of Manuel D., 19 A.D.3d 128 (1st Dept. 2005) .................................... 24, 25 People v. Adams, 39 A.D.3d 1081 (3d Dept. 2007) ................................................32 People v. Alford, 186 A.D.2d 43 (1st Dept. 1992) ..................................................30 People v. Allen, 141 A.D.2d 405 (1st Dept. 1988) ..................................................30 People v. Bachiller, 93 A.D.3d 1196 (4th Dept. 2012) ...........................................27 People v. Benjamin, 51 N.Y.2d 267 (1980) ....................................................... 23,28 People v. Bond, 116 A.D.2d 28 (1st Dept. 1986) ....................................................27 People v. Bowles, 132 A.D.2d 465 (1st Dept. 1987) ...............................................35 People v. Cantor, 36 N.Y.2d 106 (1975) .......................................................... 22, 23 People v. Chestnut, 51 N.Y.2d 14 (1980) ................................................................29 People v. Cintron, 304 A.D.2d 454 (1st Dept. 2003) ..............................................23 People v. Coleman, 56 N.Y.2d 269 (1982) ..............................................................31 People v. DeBour, 40 N.Y.2d 210 (1976) ........................................................ 22, 22 iv People v. Duggins, 1 A.D.3d 450 (2d Dept. 2003) ..................................................40 People v. Exum, 208 A.D.2d 557 (2d Dept. 1994) ..................................................28 People v. Gatling, 38 A.D.3d 239 (1st Dept. 2007) ................................................29 People v. Gillam, 36 A.D.3d 1151 (3d Dept. 2007) ................................................33 People v. Hayes, 97 N.Y.2d 203 (2002) ..................................................... 32, 37, 38 People v. Hollman, 79 N.Y.2d 181 (1992) ....................................................... 22, 24 People v. Ingram, 114 A.D.3d 1290 (4th Dept. 2014) ..................................... 24, 26 People v. Jones, 81 A.D.2d 22 (2d Dept. 1981) ......................................................38 People v. Mabeus, 68 A.D.3d 1557 (3d Dept. 2009) ...............................................29 People v. Major, 115 A.D.3d 1 (1st Dept. 2014) .............................................. 24, 25 People v. Marquez, 22 A.D.3d 388 (1st Dept. 2005) ..............................................32 People v. Martin, 50 N.Y.2d 1029 (1980) ...............................................................38 People v. Martinez, 80 N.Y.2d 444 (1992) ..............................................................22 People v. Mayrant, 43 N.Y.2d 236 (1977) ..............................................................35 People v. Moore, 82 A.D.2d 972 (3d Dept. 1981) ...................................................34 People v. Negron, 166 A.D.2d 165 (1st Dept. 1990) ...............................................34 People v. Ochs, 133 A.D.2d 283 (2d Dept. 1987) ...................................................34 People v. Pavao, 59 N.Y.2d 282 (1983) ..................................................................35 People v. Pines, 99 N.Y.2d 525 (2002) ...................................................................27 People v. Reyes, 199 A.D.2d 153 (1st Dept. 1993) .............................................8, 24 v People v. Sandoval, 34 N.Y.2d 371 (1974) ...................................................... 31, 32 People v. Schwartzman, 24 N.Y.2d 241 (1969).......................................................32 People v. Sierra, 83 N.Y.2d 928 (1994) ..................................................................27 People v. Smith, 18 N.Y.3d 588 (2012) ...................................................................35 People v. Smith, 228 A.D.2d 173 (1st Dept. 1988) .................................................30 People v. Tarver, 292 A.D.2d 110 (3d Dept. 2002) ................................................33 People v. Tiribio, 88 A.D.3d 534 (1st Dept. 2011) .................................................29 People v. Tutt, 38 N.Y.2d 1011 (1976) ....................................................................38 People v. Vargas, 88 N.Y.2d 856 (1996) .................................................................36 People v. Walker, 83 N.Y.2d 455([1994) ......................................................... 31, 32 People v. Williams, 52 A.D.2d 520 (1st Dept. 1976) ..............................................28 People v. Winfield, 145 A.D.2d 449 (2d Dept. 1988) ..............................................34 People v. Yanus, 92 A.D.2d 674 (3d Dept. 1983) ...................................................28 People v. Zillinger, 179 A.D.382 (1st Dept. 1992) ..................................................33 Statutes Penal Law §160.10(1) ................................................................................................ 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - LAWRENCE PARKER, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X RESPONDENT’S BRIEF STATEMENT Lawrence Parker appeals from a judgment of the Supreme Court, Bronx County (Moore, J., at hearing; Stadtmauer, J., at trial), rendered November 4, 2010, convicting him, after a jury trial, of Robbery in the Second Degree (Penal Law §160.10[1]), and sentencing him as a mandatory persistent violent felony offender to an indeterminate term of twenty years to life imprisonment. Defendant is currently incarcerated pursuant to this judgment. 2 QUESTIONS PRESENTED 1. Whether police had lawful authority to stop and detain defendant? The court below concluded that police acted with the requisite lawful authority in stopping and detaining defendant. 2. Whether the trial court’s Sandoval ruling was an abuse of discretion? The court precluded questioning about defendant’s 1974 drug conviction and reached a Sandoval compromise with respect to defendant’s prior robbery convictions, parole violations, and use of aliases. 3 THE FACTS The Indictment By indictment (514/2008), filed February 1, 2008, the Grand Jury of Bronx County accused defendant and his co-defendant, Mark Nonni, 1 with acting in concert to commit two counts of Robbery in the First Degree, three counts of Burglary in the First Degree, two counts of Robbery in the Second Degree, four counts of Burglary in the Second Degree, Robbery in the Third Degree, Burglary in the Third Degree, Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fourth Degree, Unlawful Imprisonment in the Second Degree, Criminal Possession of Stolen Property in the Fifth Degree, two counts of Criminal Possession of a Weapon in the Fourth Degree, Petit Larceny, and Criminal Trespass in the Second Degree. The Suppression Hearing On Monday morning, January 21, 2008, at approximately 9:30 a.m., Police Officer Peter Delaney was working for the New York City Police Department in the Anti-Crime Unit of the 45 Precinct (Delaney: H. 8, 10). 2 That morning, he and his partners, Police Officer Joseph Lemp and Sgt. Morales, were patrolling the Westchester Square area of The Bronx in an unmarked police vehicle when they 1 Mark Nonni was also convicted of Robbery in the Second Degree (Penal Law §160.10[1]), and has perfected his appeal before this Court. It is currently on this Court’s May 2015 calendar. 2 Numerals preceded by “H.,” or “T.” indicate the page numbers of the minutes for the hearing and trial, respectively. 4 received a radio run of a “burglary in progress” at 3341 Country Club Road (hereinafter “the location”) (Delaney: H. 11-13). 3 Pursuant to that radio run, Police Officers Delaney, Lemp, and Sgt. Morales immediately proceeded to the location, which was set in a residential area along a two-lane road with one lane travelling in each direction (Delaney: H. 14, 19; Fraterrigo: H. 95). Approximately five minutes passed between the time Officer Delaney heard the radio run and his arrival at the location (Fraterrigo: H. 83). Police Officer Martinez was the first officer to arrive in his marked police vehicle, with Officers Delaney, Lemp, and Sgt. Morales arriving second, and directly behind them was another marked police vehicle containing Police Officers Michael Fraterrigo and Daniel Balaj (Delaney: H. 14- 15, 43-44; Fraterrigo: H. 82-83, 92). All six officers exited their vehicles and, realizing they had driven “slightly” past the exact address, stood outside looking for the marked address of the location, which is a private country club with a long driveway (Delaney: H. 19-21, 44, 65, 72; Fraterrigo: H. 84). That morning, there was no pedestrian or vehicular traffic in the area (Fraterrigo: H. 84, 96). As the officers stood outside their vehicles, they observed defendant and Mark Nonni (hereinafter “Nonni”) “casually” walking together up the driveway toward Country Club Road, behind the gate of 3341 Country Club Road (Delaney: H. 22, 26, 53, 62-64, 67-68, 70; 3 No additional details were provided during that radio run (Delaney: H. 21, 67). 5 Fraterrigo: H. 84, 92-93, 100, 102). 4 Defendant was carrying a red bag and Nonni was carrying a black bag (Delaney: 27; Fraterrigo: H. 85). There were no other civilians in the vicinity and, considering the “swift” manner in which the police responded to the radio call, Officer Fraterrigo wanted to speak with the men to determine if they were victims, witnesses, or possibly suspects (Fraterrigo: H. 84, 95-96). Police Officers Delaney, Lemp, and Martinez approached defendant and Nonni, and Officer Martinez “told the two individuals to stop, that [they] were police, and wanted to ask them a question” (Delaney: H. 22-24; Fraterrigo: H. 85, 93, 102). Defendant and Nonni did not stop or acknowledge the officers (Delaney: H. 23, 69). Officer Martinez again asked them to stop, and Nonni took off running up Country Club Road toward Campbell Drive (Delaney: H. 23-24, 26, 49, 72; Fraterrigo: H. 85, 101-102). Officers Delaney, Lemp, and Martinez chased Nonni and caught up with him approximately 150 yards from the location (Delaney: H. 25-26, 49, 57, 69; Fraterrigo: H. 85). When Officer Martinez caught up with Nonni, he “punch[ed] at the officer and flail[ed] his arms” (Delaney: H. 26, 54, 59-60). Officers Delaney and Lemp assisted Officer Martinez in placing Nonni into handcuffs (Delaney: H. 26-27, 35- 36). During the “struggle” to get him in handcuffs, Officer Lemp’s finger was cut 4 3341 is marked with numbers on the outside of the gate “by the end of the driveway” (Delaney: H. 65). 6 by a “long serrated knife” approximately twelve inches in length, that was poking through the backpack Nonni was wearing (Delaney: H. 27, 27A, 28-29, 54-55, 59, 61, 61A; People’s 2 in Evidence: Photograph of the knife). 5 Nonni was then placed under arrest for assault on a police officer and resisting arrest, and Officer Lemp searched the backpack (Delaney: H. 48, 53-54, 57, 58-59, 62). Inside the bag, Officer Lemp found a butcher knife and a roll of duct tape (Delaney: H. 30-31, 55). Additionally, Officer Lemp recovered three envelopes, each containing $1000 in cash, from Nonni’s back pants pocket (Delaney: H. 31; People’s 3 in Evidence: Photographs of the envelopes and money). Meanwhile, back at the location, after Nonni took off running, defendant “briskly” walked across the street to the front lawn of 3338 Country Club Road (Fraterrigo: H. 85, 93-94). Police Officers Fraterrigo and Balaj told defendant to stop and followed him (Fraterrigo: H. 85). As Officer Fraterrigo got closer to defendant, he was able to see a sledgehammer inside of defendant’s unzipped backpack (Fraterrigo: H. 97; People’s 4 in Evidence: Photograph showing the sledgehammer). Officer Fraterrigo caught up with defendant, and defendant “struggled” with Officer Fraterrigo. Defendant was subsequently placed into handcuffs (Fraterrigo: H. 85-86, 97). In addition to the sledgehammer, defendant’s backpack contained one crowbar, and defendant had a “little steak knife” in his 5 Officer Lemp did not seek medical treatment for his injury (Delaney: H. 60). 7 coat pocket (Fraterrigo: H. 87-88; People’s Exhibit 4 in Evidence: Photograph showing sledgehammer and crowbar). While Officer Fraterrigo was standing with defendant on the lawn of 3338 Country Club Road, he heard a man yell, “That’s him, that’s the guy, that’s the motherfucker who did it” (Fraterrigo: H. 89-91, 97). Officer Fraterrigo turned around and saw Robert Ederle standing in the middle of the street, pointing at defendant (Fraterrigo: H. 89-90, 104). 6 Moments later, Officers Delaney, Lemp, and Martinez walked around the corner with Nonni in handcuffs (Delaney: H. 36, 56-57; Fraterrigo: H. 90). Robert Ederle immediately pointed at Nonni and yelled, “That’s the other guy” (Delaney: H. 38-39, 57; Fraterrigo: H. 90). Both defendant and Nonni were subsequently taken to the 45 Precinct (Delaney: H. 39). At the precinct, Robert Ederle explained to Officer Delaney that defendant and Nonni had come to the location to look at the party space. While Mr. Ederle was “showing them around,” one of the men “pulled a knife and held it to Mr. Ederle’s throat and bound him with duct tape” (Delaney: H. 41). Mr. Ederle told Officer Delaney that the three envelopes each containing $1,000 had been taken from the club (Delaney: H. 40- 42). 6 Officer Fraterrigo did not speak with Robert Ederle, but testified that Mr. Ederle’s point out occurred approximately one to two minutes after police arrived at the location (Fraterrigo: H. 89, 91). 8 The Court’s Ruling In a Decision and Order dated April 15, 2010, the court credited the testimony of Officers Delaney and Fraterrigo and found that police acted lawfully in stopping and detaining defendant and Nonni (Judgment Roll: Decision and Order, p. 9). Their initial request for defendant and Nonni to “stop” so they could “ask a question” was proper because the two men were observed on the exact property where a burglary was purportedly in progress (Id. at 13). Citing People v. Reyes, 199 A.D.2d 153 (1st Dept. 1993), the court ruled that the officers’ initial request for defendant to stop did not constitute a seizure because they had a common law right of inquiry (Decision and Order, pp. 12-13). Defendant’s subsequent flight elevated that common law right of inquiry to reasonable suspicion, thereby “justifying the pursuit and seizure” (Id. at 13). The court further found the search and seizure “justified and lawful” (Id. at 14). The victim’s identification of defendant was ruled as spontaneous and, based on that identification, police had “requisite probable cause to effectuate [defendant’s] arrest” (Id. at 15). Accordingly, the motions to suppress were denied in their entirety. 9 The Trial The People’s Case On January 21, 2008, at approximately 9:15 a.m., Robert Ederle and his wife, Anne Ederle, were inside of their apartment at 3341 Country Club Road in The Bronx (A. Ederle: T. 81; R. Ederle: 190, 235). Their apartment is part of the Westchester County Country Club (hereinafter “the club”), a private club for homeowners living in the Country Club section of The Bronx (A. Ederle: T. 40-41, 44-45, 102-103; R. Ederle: T. 190, 199-200). The club is set in a residential area along the water with little commercial activity (A. Ederle: T: 40, 101; R. Ederle: 188, 190-192, 326, 336-338; Delaney: T. 507). Mr. and Mrs. Ederle served as the “caretakers” of the club and, in addition to a small salary, received a rent-free apartment located in the same building as the club (A. Ederle: T. 41-42, 90, 92-93; R. Ederle: 190, 197-199). As the “caretakers” of the property, the Ederles performed janitorial duties such as cleaning and maintenance of the property (R. Ederle: T. 197). The main features of the club include a bar where members and their guests can have a drink, and a catering room that is available for rent (A. Ederle: T. 43, 45, 103; R. Ederle: T. 200). Since the water became polluted, membership declined and the club had fallen into poor financial straits (R. Ederle: 201). In 2008, Mr. Ederle served as the club’s bartender and, in an effort to “drum up business,” organized several football 10 pools at the bar (A. Ederle: T. 44, 78, 93, 112; R. Ederle: T. 197-198, 201-202, 376, 382). Those football pools ranged in price from anywhere between $10 per box and $10,000 per box. Each pool consisted of 100 boxes, making a $10 pool worth $1000 in prize money and the $10,000 pool worth $1,000,000. The various pools were placed on oak boards and displayed in the bar (A. Ederle: T. 112-115, 135-136; R. Ederle: T. 202-203, 206, 232, 342). Fearing a robbery, Mr. Ederle did not keep the cash for the pools in the club (R. Ederle: T. 205, 300, 351-352). Although Mr. Ederle ran these pools in the bar, neither the club nor the bar received an automatic percentage of the winnings, but Mr. Ederle was accustomed to receiving a voluntary tip from the winner (A. Ederle: 143-144; R. Ederle: T. 206-207, 348-349, 385). On Friday night, January 18, 2008, at approximately 8:00 p.m., a woman entered the bar and identified herself as “Samantha Sanchez” (A. Ederle: T. 54-55, 109, 182; R. Ederle: T. 207-209). 7 Prior to that night, Mr. and Mrs. Ederle had never seen this woman, but she claimed to have a member reference and was interested in renting the catering room (A. Ederle: T. 76, 109; R. Ederle: T. 208- 209, 359). Pursuant to that conversation, Mrs. Ederle escorted Mrs. Sanchez 7 “Samantha Sanchez” was later identified as Pamela Williams and indicted under Bronx Co. Ind. No. 4415/2009 for Conspiracy in the Fifth Degree based on her participation in this robbery. On August 19, 2010, Ms. Williams pled guilty to Disorderly Conduct, in full satisfaction of the indictment, and received community service and a conditional discharge. 11 upstairs to show her the room and explained that it could hold a maximum of 100 people (A. Ederle: T. 56, 70-71, 167; R. Ederle: T. 210-211). After showing her the room, Mrs. Ederle brought Mrs. Sanchez back downstairs to the bar and Mr. Ederle handed her a business card attached to a price list (A. Ederle: T. 71-72; R. Ederle: T. 210-221, 354-356, 358; People’s 46: Flyer and business card). Mrs. Sanchez took the paper and left the bar. Once outside, the Ederles observed Mrs. Sanchez turn the opposite direction from where she had entered the bar, which they thought strange since that direction required her to make almost a complete loop of the club to return to the driveway (A. Ederle: T. 72-73, 185; R. Ederle: T. 221, 358-360). Within two minutes of leaving, Mrs. Sanchez called the bar and spoke with Mr. Ederle about making arrangements for her husband to see the catering room. An appointment was made for “Mr. Sanchez” to come to the club on Monday morning, January 21, 2008, at 9:30 a.m. (A. Ederle: T. 74, 109-110; R. Ederle: T. 222-225). In the interim, on Sunday, January 20, 2008, there was a playoff game between the Green Bay Packers and New York Giants (A. Ederle: T. 77; R. Ederle: T. 225-226). That night, Mr. Ederle was busy bartending at the club, and there were several football pools in play for the game. Those pools, as well as the $1,000,000 Super Bowl pool, were displayed on the wall inside the bar (A. Ederle: T. 77-78, 111; R. Ederle: T. 225, 232). At approximately 8:00 p.m., Anthony 12 Devita walked into the bar, and Mr. Ederle recognized him as a patron at a bar where Mr. Ederle had previously worked. 8 Mr. Devita stayed for approximately ten minutes and then left the bar. Approximately ten minutes later, he returned to the bar and stayed for another ten minutes before leaving again (A. Ederle: 77-80; R. Ederle: T. 225-227, 231-234). 9 On Monday morning, January 21, 2008, at approximately 9:20 a.m., Mr. Ederle left his apartment and went to the club for his meeting with “Mr. Sanchez” (A. Ederle: T. 81; R. Ederle: T. 235-236, 238, 272). When Mr. Ederle opened the front door of the club, he saw defendant and Nonni walking up the driveway toward the club house (R. Ederle: T. 236-240, 242, 244, 272, 362, 364-365; People’s 13: Photograph of the side exit; People’s 35: Photograph of the driveway). As Mr. Ederle watched the two men get closer, he saw that defendant 8 Mr. Devita was later arrested and charged, under Bronx Co. Docket No. 2009BX058816, with Robbery in the Second Degree (Penal Law §§160.10[1] and [2][a] and [3]); Robbery in the Third Degree (Penal Law §160.05); and Conspiracy in the Fourth Degree (Penal Law §105.10[1]), based on his participation in this robbery. On September 24, 2009, he pled guilty under SCI No. 3069/2009, to fourth-degree conspiracy and received three years of probation. 9 At trial, the People’s theory was that Pamela Williams (a.k.a. Samantha Sanchez) set up the appointment for her husband to see the party room as a ruse to give defendant and Nonni access to the club (T. 813). Pursuant to that theory, Anthony Devita came to the bar on January 20, during a big game, to do reconnaissance on the football pools (T. 814-15). This theory was proven through the introduction of phone records showing that on January 18, 2008, defendant received a phone call from the telephone registered to Anthony Devita at approximately 8:00 p.m., shortly after Samantha Sanchez had gone into the bar and set up an appointment for Monday morning (T. 815-815A). The phone records also showed that a call was placed from Anthony Devita’s cell phone to defendant’s cell phone on Sunday night, January 20, 2008 at approximately 9:10 p.m., which corresponded with the time Mr. Devita was inside the bar and stepped out for ten minutes. Finally, the records showed that on January 21, 2008, a call was placed from Nonni’s cell phone to Anthony Devita’s cell phone at approximately 9:35 a.m., during the robbery (T. 815). 13 was holding the price list with the club’s business card that Mr. Ederle had previously given to Samantha Sanchez (R. Ederle: T. 236-239, 244, 321-324, 364; People’s 46: Flyer and business card). Believing that defendant was Mr. Sanchez, Mr. Ederle greeted defendant and Nonni, brought them inside the club, and up the stairs to the catering room, which was directly above the Ederle’s apartment (R. Ederle: T. 237-239, 246-247, 274-275; People’s 19: Photograph of the stairs; People’s 21: Photograph from the top of the stairs; People’s 22: Photograph of the hall). While Mr. Ederle showed them the room, defendant and Nonni were constantly positioning themselves so that Mr. Ederle was not able to see both men at the same time (R. Ederle: T. 247-248, 279-280). Suddenly, as Mr. Ederle moved closer to defendant, defendant yelled out, “Now!” and pulled a black handled steak knife from his backpack (R. Ederle: T. 249-250, 281, 291, 395; People’s 39: Photograph of defendant’s knife). As defendant moved closer with the knife pointed at Mr. Ederle’s torso, Mr. Ederle used his forearm to strike defendant, causing him to fall back (R. Ederle: T. 250, 281-282, 291, 395-396, 398, 438). Mr. Ederle then “spun around” and saw Nonni pointing a fourteen inch knife at Mr. Ederle’s lower back, near his kidney. With the knife in his hand, Nonni said, “Don’t move motherfucker. I’ll kill you” (R. Ederle: T. 252-253, 281-282, 291, 293-294, 399-400; People’s 38: Photograph of Nonni’s knife; People’s 49A: Nonni’s knife). Mr. Ederle immediately put his hands in the 14 air and Nonni said, “Where’s the money motherfucker? We want the football pool money. Where’s your wife?” (R. Ederle: T. 253, 295). Nonni then told Mr. Ederle to lay on his stomach on the floor, which he did, with his face pressed into the rug. Defendant then got on top of Mr. Ederle and straddled Mr. Ederle’s neck between his legs (R. Ederle: T. 254-255, 294-295). Mr. Ederle told the men that he could not breathe and defendant told him to “put [his] hands behind [his] back, don’t move, I’ll kill you” (R. Ederle: T. 255, 295). Defendant then held a knife to the back of Mr. Ederle’s neck, causing several scratches, while Nonni used duct tape to bind Mr. Ederle’s wrists behind his back (R. Ederle: T. 255-256, 289, 291, 296-297, 438, 441-442; People’s 10: Photograph of scratches on Mr. Ederle’s neck; People’s 29: same; People’s 48A: Knife defendant held against Mr. Ederle’s neck). With his hands bound, defendant and Nonni again asked Mr. Ederle for the money from the football pools, and Mr. Ederle told them it was in a room downstairs (R. Ederle: T. 255, 295). Defendant removed the knife from Mr. Ederle’s neck and Nonni held his knife against Mr. Ederle’s kidney area and told him to stand up (R. Ederle: T. 297). Once standing, Nonni placed a “rag” in Mr. Ederle’s mouth, secured it with duct tape, and told Mr. Ederle they were all going downstairs to get the money (R. Ederle: T. 297-298). With Nonni holding a knife to his kidney area, Mr. Ederle led the men downstairs to a storage room where Mr. Ederle had $3000 in cash hidden in a 15 metal soda canister (R. Ederle: T. 297-299, 301-303, 366, 379, 405, 421; People’s 15: Photograph of storage room; People’s 16: Photograph of soda canister; People’s 49A: Knife Nonni held to Mr. Ederle’s kidney area). The money was in three separate envelopes, each containing red markings and $1000 (R. Ederle: T. 315-319, 366; People’s 36: Photographs of the envelopes; People’s 37: Photograph of envelopes and money). Mr. Ederle showed Nonni where the money was hidden and Nonni entered that storage room and removed the three envelopes containing the cash from the soda canister (R. Ederle: T. 303, 317, 319, 379). 10 Nonni then spoke to someone on the telephone, saying, “We got it, that’s all there is” (R. Ederle: T. 303-304). Defendant and Nonni then told Mr. Ederle to kneel on a recliner in the adjoining room. Once kneeling on that recliner in the inclined position, Mr. Ederle’s feet were bound above his ankles with duct tape, and defendant threw a comforter over Mr. Ederle’s body (R. Ederle: T. 303-307, 367, 400, 433, 435; People’s 12: Photograph of Chair; People’s 44: Photograph of duct tape). Once Mr. Ederle was covered, the room went silent. After a few seconds, Mr. Ederle said that he had another $500 and, getting no response, threw himself off the chair and removed the comforter from his body (R. Ederle: T. 308-309, 367). Defendant and Nonni were gone. Mr. Ederle quickly freed his hands, but 10 On cross-examination, Mr. Ederle admitted that he did not “actually see Nonni with the $3,000” (R. Ederle: T. 414). 16 when the duct tape wouldn’t come loose around his ankles, he “kicked and pushed” his pants off and ran to the apartment (R. Ederle: T. 309, 367-368). 11 Meanwhile Mrs. Ederle, who had been lying awake in bed when Mr. Ederle left minutes earlier, heard three sets of footsteps above her in the catering room (A. Ederle: T. 81-82, 109, 115, 164-165, 170). Only expecting to hear two sets of footsteps (Mr. Ederle and Mr. Sanchez), Mrs. Ederle thought it strange that there was an extra set of feet. As she listened, she heard a loud thud in the catering room (A. Ederle: T. 81-82, 109, 115, 146, 170). After hearing this loud thud, Mrs. Ederle became very nervous and frightened but, not wanting to overreact, did not immediately call the police. Instead, Mrs. Ederle called Mr. Ederle’s best friend and neighbor, Joe Cotter, who told Mrs. Ederle to hang up and call the police, and that he was on his way to the clubhouse (A. Ederle: T. 82-85, 116-117). Mrs. Ederle then called 911 and, within approximately five minutes, Mr. Cotter arrived at the apartment (A. Ederle: T. 85-86, 116, 145, 162). As Mrs. Ederle and Mr. Cotter waited in the kitchen, Mr. Ederle arrived at the apartment and was very agitated (A. Ederle: T. 87, 121, 147; R. Ederle: T. 309, 368). Mr. Ederle then 11 On January 21, 2008, at approximately 12:05 p.m., Police Officer Kegham Jarjokian, of the NYPD Evidence Collection Team (ECT), arrived at the crime scene and collected three pieces of duct tape that were lying among a blanket and a pair of pants (Jarjokian: T. 628-636, 643, 657; People’s 40, 44, 55A, and 56) . Those three pieces of duct tape were sent for DNA analysis, with negative results (Jarjokian: T. 645, 661-665). 17 grabbed his keys and a softball bat, and he and Mr. Cotter left the apartment (A. Ederle: T. 87-89, 119, 121, 147; R. Ederle: T. 309-310, 368-369, 410). Back on Country Club Road, Police Officers Peter Delaney, Joseph Lemp, and Sgt. Morales, of the 45 Precinct Anti-Crime Unit, as well as Police Officers Martinez, Michael Fraterrigo, and Daniel Balaj, arrived within the immediate vicinity of 3341 Country Club Road pursuant to a radio run of a “burglary in progress” (Fraterrigo: T. 454-456, 483; Delaney: T. 504-507; Lemp: T. 567-568). Having passed the location by “a couple of houses,” the officers exited their vehicles and stood outside looking for the exact address (Fraterrigo: T. 458, 461; Delaney: T. 508; Lemp: T. 569). As they were looking, they observed defendant and Nonni walking up the driveway of the location, away from the clubhouse and toward the street (Fraterrigo: T. 459-461, 474-475, 482, 489; Delaney: T. 509-510, 530; Lemp: T. 570-571; People’s 30: Photograph of driveway). 12 Other than defendant and Nonni, there was no other pedestrian traffic in the area (Fraterrigo: T. 478, 486). Defendant was wearing a tan coat and carrying a red backpack, and Nonni was wearing a black jacket and carrying a black bag (Fraterrigo: T. 463, 468, 470; Delaney: T. 512, 515, 517, 537; Lemp: T. 604; People’s 48B: Defendant’s red backpack; People’s 49B: Nonni’s black backpack; People’s 50: Defendant’s arrest photograph; People’s 51: Nonni’s arrest photograph). 12 The numbers 3341 are displayed on a sign outside of the premises on Country Club Road (Delaney: T. 529). 18 According to Police Officer Fraterrigo, defendant and Nonni were approximately twenty or twenty-five yards away from where Officer Fraterrigo was standing when he saw them walking up the driveway (Fraterrigo: T. 487-488). As defendant and Nonni were walking up the driveway of the location, Officer Martinez called out to them, “Police. Come over here, we want to ask you a question” (Fraterrigo: T. 461, 488; Delaney: T. 510; Lemp: T. 570). Defendant and Nonni did not stop walking or acknowledge the officers. The officers started walking toward defendant and Nonni and, again, Officer Martinez called out for them to stop walking. With the officers moving closer, Nonni took off running up the driveway, turning right on Country Club Road and running toward Campbell Drive (Fraterrigo: T. 462, 474; Delaney: T. 510-511, 532, 538; Lemp: T. 570, 586). After Nonni ran, Officers Martinez, Delaney, and Lemp chased after him while Officers Fraterrigo and Balaj followed defendant, who had “elevated his pace” across the street to 3338 Country Club Road (Fraterrigo: T. 462). Once he caught up to defendant, Officer Fraterrigo saw a sledgehammer inside defendant’s open and unzipped backpack (Fraterrigo: T. 463, 469, 471; People’s 48B: defendant’s red backpack; People’s 48C: Sledgehammer). Defendant then flailed his arms trying to avoid being handcuffed (Fraterrigo: T. 463). Once in handcuffs, Officer Fraterrigo looked inside defendant’s unzipped, open backpack and, in addition to the sledgehammer, saw one crowbar. During a search of defendant’s 19 person, Officer Fraterrigo recovered a knife from his coat pocket (Fraterrigo: 464, 469-470; People’s 48A: Knife recovered from defendant’s coat pocket; People’s 48D: Crowbar). While Officer Fraterrigo was standing with defendant on the lawn of 3338 Country Club Road, he heard a man yell, “That’s him! That’s the motherfucker who did it!” (Fraterrigo: T. 465). When Officer Fraterrigo turned around, he saw Mr. Ederle standing in the street pointing at defendant (Fraterrigo: T. 465). 13 Renada Lewis, the custodian of records at Verizon Wireless, authenticated phone records for cell phone numbers registered to defendant and Anthony Devita. Certified records showing the subscriber information from Sprint/Nextel were admitted for defendant’s cell phone. According to these records, two calls were made between Anthony Devita’s cell phone and defendant’s cell phone on January 13 Officers Martinez, Delaney, and Lemp caught up to Nonni on the corner of Campbell Drive and Country Club Road where he was eventually placed into handcuffs (Delaney: T. 511-12, 538, 546-547, 565; Lemp: T. 570, 587-588, 598-600). After getting cut on a knife protruding from Nonni’s backpack, Officer Lemp searched the backpack and recovered a long serrated knife that was poking out of the bag, another knife, and a roll of duct tape (Delaney: T. 512-517, 519; 538; 552-555, 557; Lemp: T. 572, 574-575, 591, 593; People’s 49A: long serrated knife; People’s 49B: black backpack; People’s 49C: knife recovered from Nonni’s bag; People’s 49F: roll of duct tape). Additionally, Officer Lemp recovered three envelopes from Nonni’s back pants pocket each containing red markings and $1000 in cash, and a cell phone (Delaney: T. 520, 558; Lemp: T. 572-573, 577; People’s 36: three envelopes; People’s 37: photograph of the envelopes and the money). Officers Martinez, Lemp, and Delaney then walked Nonni back to the location where Mr. Ederle was standing in the middle of the street, pointing at Nonni and yelling, “That’s the other guy!” (R. Ederle: T. 313, 444; Fraterrigo: T. 468; Delaney: T. 521; Lemp: T. 575-576, 602-603). Robert Ederle identified the three envelopes and their contents as the envelopes and money that were removed from the soda canister in the storage room (R. Ederle: T. 316-319; People’s 36 and 37). 20 18, 2008 at 8:07 p.m., and 8:08p.m. Again, on January 20, 2008, the records show that a cellular phone call was made between Anthony Devita and defendant at approximately 9:10 p.m. Finally, on January 21, 2008, at approximately 9:35 a.m., the records show that there was a phone call placed between Nonni and Anthony Devita (Lewis: T. 676-677, 679-680, 683, 689-690, 692, 697-698, 705; T. 722, 733-742; People’s 57; People’s 58; People’s 59). The Defense Case Neither defendant nor Nonni called any witnesses. ARGUMENT POINT I POLICE ACTED WITH LAWFUL AUTHORITY WHEN THEY STOPPED AND DETAINED DEFENDANT. Defendant claims the hearing court erred in finding that police had the requisite suspicion to stop and arrest him (defendant’s brief, p. 22-32). Defendant’s claim should be denied as meritless. Police personnel had a common law right to inquire when they observed defendant in the private driveway of the exact location where a reported burglary was taking place. That common law right to inquire escalated to reasonable suspicion when, instead of yielding to requests for him to stop, defendant fled from police. With reasonable suspicion established, police were permitted to pursue defendant and handcuff him for their safety after they 21 observed him with a sledgehammer in his backpack (Fraterrigo: H. 85). Accordingly, the order of the hearing court was proper and should be affirmed. The United States Constitution forbids unreasonable searches and seizures. See Elkins v. United States, 364 U.S. 206, 222 (1960). Under Federal law, an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. See Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion is a less demanding standard than probable cause but, nonetheless, requires at least a “minimal level of objective justification for the stop” (Illinois v. Wardlow, 528 U.S. 119, 123 [2000]), and is based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U.S. 411, 418 (1981). Those judgments and inferences must be judged against an objective standard that considers the facts available to the officer at the moment of the search or seizure. See Terry, 392 U.S. at 22. In other words, in order to justify a particular intrusion, the police must be able to articulate the specific facts that, when taken together with rational inferences, demonstrate a person of reasonable caution would find that the action taken was appropriate. Id. Under New York law, there are four distinct levels of police intrusion: a request for information; a common law right of inquiry; reasonable suspicion; and, probable cause. See People v. DeBour, 40 N.Y.2d 210 (1976). The first level is the least intrusive and gives police “fairly broad authority to approach individuals and 22 ask questions related to identity or destination, provided that the officers do not act on whim or caprice, and have an articulable reason not necessarily related to criminality to approach” (People v. Hollman, 79 N.Y.2d 181, 190 [1992]). The second level is more intrusive and requires a “founded suspicion that criminality is afoot” (DeBour, 40 N.Y.2d at 215-216). A determination of whether there is a “founded suspicion” of criminality is judged by the knowledge of the police officers at the moment of approach, and any reasonable inferences to be drawn therefrom (Id.). The third level, reasonable suspicion, requires a reasonable belief that a person has committed, is committing, or is about to commit a felony or misdemeanor. Reasonable suspicion is based on a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (In Re Steven McC., 304 A.D.2d 68, 72 [1st Dept. 2003] citing People v. Martinez, 80 N.Y.2d 444, 448 [1992]). Finally, probable cause is the fourth and most intrusive level, and permits police to make a formal arrest. There are no bright lines separating various types of police activity. Determining whether a seizure occurs during the course of a street encounter between police and a private citizen involves an analysis of the “most subtle aspects of our constitutional guarantees” (People v. Cantor, 36 N.Y.2d 106, 112 [1975]). Whether a particular seizure is reasonable “requires weighing the 23 government’s interest in the detection and apprehension of criminals against the encroachment involved with respect to an individual’s right to privacy and personal security.” Id. at 111. Here, police had a common law right of inquiry when they arrived at the location and observed defendant and Nonni walking on the private grounds of the exact location where a reported burglary was taking place. From the time police received the call until they arrived and saw defendant and Nonni in the driveway, approximately five minutes had passed. There were no other pedestrians or vehicles in the area. Upon seeing defendant and Nonni in the driveway of this private location, officers had the right to approach them to inquire about their presence at the location and to determine, specifically, whether the two men were victims, witnesses, or suspects of the burglary. See People v. Benjamin, 51 N.Y.2d 267, 270 (1980) (Radio call of “men with guns” at a specified location, no description given, gave police “at most, common law right to inquire”); People v. Cintron, 304 A.D.2d 454 (1st Dept. 2003) (police encountered defendant “in close temporal and spatial proximity to a reported robbery,” and even though he did not perfectly match the description in the radio run, there were enough similarities to justify a common law right of inquiry). Further, the language used by police in asking them to stop was general and non-threatening. Officer Martinez called out for defendant and Nonni to “stop, 24 police, we want to ask you a question” (Delaney: H. 23-24). Officer Martinez followed up that initial request by saying, “please stop, we want to ask you a question” (Id.). Officer Martinez’s request, using the word “please,” and merely indicating that police wanted to ask a question, was not conveyed in the kind of language that would cause a reasonable person to believe that police were placing a “significant limitation on his…freedom” (People v. Major, 115 A.D.3d 1, 5 [1st Dept. 2014]). Indeed, as the hearing court concluded, “[t]he conduct of the officers at this juncture, did not constitute a seizure. ‘A request that somebody stop is a necessary preliminary to a request for information when a person is ahead of the officer, walking away from him, and appears unaware that the officer wished to inquire of him’” (Judgment Roll: Decision and Order, p. 12-13, citing Reyes, 199 A.D.2d 153). Further, the language used by police was general and non- threatening, and “one at the minimal level of intrusiveness” (Judgment Roll: Decision and Order, p. 13, citing Hollman, 79 N.Y.2d at 191). Defendant argues that “[defendant’s] presence near the scene provided the officers with no more than an objective, credible reason to request information” (defendant’s brief, p. 27), and cites Matter of Manuel D., 19 A.D.3d 128 (1st Dept. 2005), Major, 115 A.D.3d 1, and People v. Ingram, 114 A.D.3d 1290 (4th Dept. 2014), as support for that conclusion. Neither of those cases are analogous to the instant matter. In Manuel D., police received a radio call of a burglary in progress. 25 Police had no information regarding a description, or even where in the premises the burglary had taken place. Manuel D. was standing in the vicinity of a parked car on a public street when police approached him and he fled. The Court ruled that police had only a level one request for information because they did not have a founded suspicion that Manuel D. was involved in any criminality. By contrast, here, police responded to the exact location of a burglary in progress, arriving five minutes after the radio call, and observed defendant and Nonni walking on the private driveway of the exact location. 14 Accordingly, this case differs from that of Manuel D., and police had a common law right to inquire because, under the circumstances, they had a founded suspicion that criminality was afoot. Similarly, in Major, police stopped a Lexus for having excessively tinted windows. While running the driver’s pedigree information in the police computer, Major approached the Lexus and took a small black plastic bag from the driver and walked away. Without seeing the contents of that bag, police told Major to stop and “turn the bag over” (Major, 115 A.D.3d at 3). Major then threw the bag onto the trunk of a nearby car, police recovered it, and discovered that the bag contained marijuana. Under these circumstances, the Court ruled that police had a founded 14 Defendant refers to the location as a “commercial establishment” (defendant’s brief, p. 22). Whether the location is commercial or not is irrelevant since it has no bearing on the private aspect of the property, and defendant never claims that the two are mutually exclusive. Indeed, the hearing testimony described the location as “private property” with a “private driveway,” that leads to a “public road,” (Delaney: H. 70-72; Fraterrigo: H. 93), demonstrating that this location may have had a commercial aspect to it, but was certainly not open to the general public. 26 suspicion that criminal activity was afoot but, having made no additional observations to support reasonable suspicion, the subsequent seizure was unlawful. Unlike Major, police responded to this specific location based on a radio run of a burglary in progress and, therefore, had a founded suspicion that criminal activity was afoot when they arrived at the location. Seeing defendant and Nonni in the private driveway of the exact location, with no other pedestrians or vehicular traffic in the area, police lawfully approached defendant to investigate the 911 call. Ingram, 114 A.D.3d 1290, is also distinguishable from the instant matter. In Ingram, police received a tip from an arrestee about some guns that were “stashed” behind house number 118 on Montana Avenue. When police went to investigate that tip, they observed Ingram and his friend on the street outside of 116 Montana Avenue. Police recognized Ingram’s friend and stopped to talk to speak to that individual. While police spoke with his friend, Ingram attempted to quickly walk away and one of the officers called out asking why he was “going so fast” (Id. at 1292). According to police, Ingram then turned, grabbed an object in his jacket, and ran away from police. Police gave chase, apprehended him, and recovered a loaded handgun from Ingram’s jacket. Unlike Ingram, where the defendant was merely in the vicinity of the target location, defendant and Nonni were on the actual property of the exact address of the burglary. 27 Defendant and Nonni’s subsequent flight, taken together with the radio call of a burglary in progress at that specific address, and the arrival of police at the location within five minutes, was sufficient to raise the permissible level of intrusion to reasonable suspicion, thereby giving police lawful authority to pursue and detain defendant and Nonni. See Terry, 392 U.S. at 30 (“[w]hile flight is not necessarily indicative of ongoing criminal activity, officers can detain individuals to resolve ambiguities in their conduct”); Wardlow, 528 U.S. 119 (2000) (same); United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (nervous, evasive behavior can support a finding of reasonable suspicion”); People v. Bond, 116 A.D.2d 28, 31 (1st Dept. 1986) (same) People v. Pines, 99 N.Y.2d 525, 527 (2002) (“defendant's flight, and the additional suspicion engendered by it, met the level of reasonable suspicion, justifying pursuit and detention of the defendant”); People v. Sierra, 83 N.Y.2d 928, 929 (1994) (same); Steven McC., 304 A.D.2d 68 (same); People v. Bachiller, 93 A.D.3d 1196, 1197-1198 (4th Dept. 2012) (police investigating an alleged stabbing, observed defendant, who ran in the opposite direction of police. While running, defendant grabbed an object in his waistband. Court held there was reasonable suspicion based on the flight and defendant’s actions in grabbing his waistband). Indeed, not only was a level two common law right of inquiry established, but police, faced with this set of facts, had a lawful duty to investigate the 28 substance of the 911 call. See Benjamin, 51 N.Y.2d at 271(“A police officer directed to a location by a general radio call cannot reasonably be instructed to close his eyes to reality--neither the officer nor justice should be that blind. The officer was rightfully and dutifully on the scene and could not ignore possible indications of criminality, nor is there any logical reason for him to reject the natural mental connection between newly encountered facts and the substance of the radio message”); People v. Yanus, 92 A.D.2d 674 (3d Dept. 1983) (police questioning was investigatory rather than custodial and was made pursuant to their duty to investigate a claim); People v. Williams, 52 A.D.2d 520 (1st Dept. 1976) (“police had an affirmative duty to investigate anonymous telephone report of a man with a gun. Indeed, he would have been derelict in the performance of his duty had he not investigated”). Accordingly, Officer Martinez’s request for defendant to stop was not an unlawful intrusion on defendant’s liberty. As acknowledged by the hearing court, absent Officer Martinez asking defendant to stop, defendant would not otherwise know that police wanted to speak with him (Order and Decision, pp. 12-13). Defendant further argues that defendant did not “actively flee” from police but, rather exercised his right to “walk away” (defendant’s brief, p. 28). Whether defendant ran at “full force,” or “elevated his pace” by walking away from officers, his actions still constitute flight (Fraterrigo: H. 94, 102). See People v. Exum, 208 29 A.D.2d 557 (2d Dept. 1994) (walking can constitute flight). Therefore, defendant’s flight, taken together with defendant’s presence on the private grounds of the exact address where a burglary was purportedly in progress gave police reasonable suspicion to pursue him. With reasonable suspicion established, Officer Fraterrigo placed defendant into handcuffs for further investigation. Only after Mr. Ederle identified defendant was he formally arrested. Nonetheless, defendant claims that he was under arrest, without probable cause, when “Fraterrigo…pushed defendant to the ground face down and handcuffed him” (defendant’s brief, p. 29). This claim should be rejected because defendant, in addition to fleeing from police, possessed a sledgehammer, which represented a legitimate safety concern that permitted Officer Fraterrigo to place him in handcuffs during the remainder of the investigation. See People v. Tiribio, 88 A.D.3d 534, 535 (1st Dept. 2011), citing People v. Chestnut, 51 N.Y.2d 14, 21 (1980) (“officers’ display of their weapons, use of force to bring defendant to the ground, and application of handcuffs were precautionary measures that were justified by the circumstances and did not elevate the detention to an arrest”); People v. Mabeus, 68 A.D.3d 1557, 1562 (3d Dept. 2009) (police had reasonable suspicion to stop defendant, place him in handcuffs, and secure him for “approximately 30 minutes, since each of these actions was justified by particular exigencies involved in the investigation”); People v. Gatling, 38 A.D.3d 239, 240 30 (1st Dept. 2007) (defendant’s “resistance to the police at the time of his detention fully justified the use of handcuffs as a precautionary measure during the brief period in which police awaited arrival of the victim”); People v. Alford, 186 A.D.2d 43 (1st Dept. 1992) (defendant was reasonably placed in handcuffs during an investigative detention because he had “already attempted to flee”); People v. Smith, 228 A.D.2d 173, 174 (1st Dept. 1988) (officers permitted to transport handcuffed suspect to conduct show up identification); People v. Allen, 141 A.D.2d 405, 407 (1st Dept. 1988) (same). Based on the foregoing, police acted with the requisite lawful suspicion justifying their initial request for defendant to stop, and their subsequent pursuit and detention of defendant. Accordingly, defendant’s claims should be rejected. POINT II THE COURT DID NOT ABUSE ITS DISCRETION TO THE EXTENT THAT IT GRANTED THE PEOPLE’S SANDOVAL APPLICATION. Prior to the commencement of trial, the prosecution made a Sandoval application for permission to cross-examine defendant about his 1974 conviction for fourth-degree criminal sale of a controlled substance, two separate first-degree robbery convictions from 1982, a 1998 conviction for fifth degree criminal possession of a controlled substance, two parole revocations from 2004 and 2005, and his use of five aliases. In its exercise of discretion, the court permitted the 31 People to inquire about defendant’s two convictions for robbery in 1982, his 1998 conviction for a “drug offense,” whether his parole had ever been revoked, and his use of aliases (T. 9). As a compromise, the court precluded the People from inquiring about the 1974 conviction or any underlying facts related to the robberies, the drug offense, and the parole revocations (T. 9). Defendant now claims that he was denied his right to a fair trial because this ruling “essentially prohibited [him] from testifying” (defendant’s brief, p. 33). Defendant’s claim should be rejected because the trial court’s ruling reflected a careful balance between the probative value of his prior bad acts on his credibility, with the prejudicial effect they may have against defendant. The nature and extent of cross-examination falls within the sound discretion of the trial court. See People v. Sandoval, 34 N.Y.2d 371, 374 (1974). To that end, the trial court is permitted to make an advanced ruling as to what prior convictions or “proof of the prior commission of specific criminal, vicious or immoral acts,” the prosecutor may use to impeach the defendant’s credibility. Id. Such cross- examination is not limited to questions about prior crimes, but extends to any act that “demonstrates an untruthful bent or ‘significantly reveal[s] a willingness or disposition on the part of the particular defendant to voluntarily place the advancement of his individual self-interest ahead of the interests of society’” (People v. Walker, 83 N.Y.2d 455, 476 [1994] citing People v. Coleman, 32 56 N.Y.2d 269, 273 [1982]). Such acts include the use of aliases, false pedigree information, and parole revocations. See Walker, 83 N.Y.2d 455 (use of aliases may be considered proper for impeachment); People v. Marquez, 22 A.D.3d 388 (2005) (court properly permitted inquiry into defendant’s parole status); People v. Adams, 39 A.D.3d 1081 (3d Dept. 2007) (court properly permitted inquiry into defendant’s prison disciplinary records). In determining what, if any, evidence of prior bad acts or convictions may be used to impeach a defendant’s credibility, the court must “balance the probative value of such proof and the danger of prejudice it presents to an accused” (Sandoval 34 N.Y.2d at 375 citing People v. Schwartzman, 24 N.Y.2d 241, 247 [1969]); however, “[o]ur law does not require ‘the application of any particular balancing process,’” and “there are no per se rules requiring preclusion because of the age, nature, and number of prior crimes” (Walker, 83 N.Y.2d at 459). See also People v. Hayes, 97 N.Y.2d 203, 208 (2002) (“[a] trial court may exclude such evidence entirely,” or “limit inquiry to the mere fact that there has been a prior conviction, the existence and nature of the prior conviction, or it may permit examination into the facts and circumstances underlying the prior conviction”). Considering the probative value of defendant’s 1982 robbery convictions, his parole revocations, and his use of five aliases, the trial court did not abuse its discretion in permitting the People limited inquiry of these prior bad acts. 33 Nonetheless, defendant claims that the People should not have been able to address his 1982 convictions for robbery because they were twenty-eight years old at the time of his trial and were, therefore, not probative of his credibility (defendant’s brief, p. 36). Despite the age of the convictions, they remained relevant and probative of defendant’s credibility because, during those twenty-eight years between 1982 and 2010, defendant had spent approximately twenty years of that time incarcerated. (Judgment Roll: Persistent Violent Felony Information form). Accordingly, it is somewhat misleading to quantify these convictions as twenty- eight years old when, after spending twenty of those years incarcerated, the probative value of those convictions in assessing defendant’s credibility remains relevant. See People v. Zillinger, 179 A.D.382 (1st Dept. 1992) (Sandoval ruling, permitting People limited inquiry into defendant’s 18, 14, and 12 year-old convictions was not an abuse of discretion since defendant had been incarcerated during that period for approximately 13 years and the court limited inquiry to the existence of the convictions without going into underlying facts or mention of specific crimes); People v. Tarver, 292 A.D.2d 110, 117 (3d Dept. 2002) (“older convictions have been permitted where defendant was incarcerated for extensive period in the years since the convictions”); People v. Gillam, 36 A.D.3d 1151, 1153 (3d Dept. 2007) (same). 34 Defendant further claims that his 1982 robbery convictions should have been precluded because they “presented him as a person with a propensity to commit robberies in a case where the jury was considering whether he had committed a robbery” (defendant’s brief, p. 35). The similarity between defendant’s prior convictions and the instant charges did not render them automatically inadmissible. See People v. Winfield, 145 A.D.2d 449 (2d Dept. 1988) (the fact that a defendant has committed crimes similar to the one charged does not automatically preclude the prosecutor from using evidence of such crimes for impeachment purposes where such prior convictions were highly relevant on the issue of credibility). Undeniably, a prior conviction for robbery, by its very nature, is demonstrative of defendant’s willingness to place his own interests above those of society. See People v. Moore, 82 A.D.2d 972 (3d Dept. 1981) (“proof of willingness to steal has been specifically recognized as very material proof of lack of credibility”); People v. Ochs, 133 A.D.2d 283 (2d Dept. 1987) (same); People v. Negron, 166 A.D.2d 165 (1st Dept. 1990). In an effort to reduce any prejudicial effect such conviction may have, the court struck a delicate balance that permitted the People to impeach his credibility while also protecting defendant by restricting the People from addressing the underlying facts of those convictions and without specifying the name of the conviction as anything other than robbery. Accordingly, defendant has failed to show that the court abused its discretion or that, had he 35 testified, he would have been “presented as a person with a propensity to commit robbery” (defendant’s brief, p. 35). See People v. Smith, 18 N.Y.3d 588, (2012) (court did not abuse discretion for permitting cross-examination of three prior convictions for selling drugs during trial where he was charged with selling drugs. Record reflected the court limited the cross-examination to the name of the conviction, date of conviction, and county of conviction, with no inquiry into the underlying facts); People v. Pavao, 59 N.Y.2d 282, 292 (1983); Cf. People v. Bowles, 132 A.D.2d 465 (1st Dept. 1987) (court erred in allowing prosecution to inquire about thirteen prior convictions involving petty theft related offenses, seven of which the court permitted inquiry into the underlying facts, where defendant was charged with theft in the instant matter). Even so, defendant cites People v. Mayrant, 43 N.Y.2d 236 (1977) as support for his contention that this Sandoval ruling “encouraged a propensity- based inference of guilt” (defendant’s brief, p. 37). Mayrant is not analogous to the instant matter in that the trial court in Mayrant permitted cross-examination of the defendant’s prior “violent acts” because such acts “go to the heart of the defendant’s testimony, should he take the stand, as to who was or was not the aggressor in the instant proceeding” (Id. at 238). The Court ruled this as error because the purpose of allowing the inquiry was not based on impeachment but, rather, to show his propensity for committing violent crime, thereby deflating his 36 defense of justification. By contrast, the court in the instant matter does not suggest any basis, other than impeachment, for permitting limited inquiry of defendant’s prior bad acts. Because the ruling here is not reflective of a propensity-based mindset, Mayrant does not apply to the instant case. Likewise, defendant’s citation to People v. Vargas, 88 N.Y.2d 856 (1996) (defendant’s brief p. 37-38) is also misplaced. Vargas was convicted of rape and other related charges. Prior to the start of trial, Vargas claimed that the sex was consensual and, indeed, following the rape, the victim admitted that she contacted defendant and engaged in consensual intercourse with him. In an effort to counter defendant’s theory that the rape was consensual, the prosecution made a Molineux application, seeking permission to introduce testimony of Vargas’s prior sexual misconduct during their case in chief, to show his intent to commit this crime. The trial court permitted the People to introduce testimonial evidence from four women, who would claim that Vargas had engaged in prior sexual misconduct with each of them. As a result of that ruling, Vargas was forced to abandon his defense of consent and was convicted. Upon review, the Court found that the trial court erred in permitting such testimony because it was introduced for no other reason than to show Vargas’s propensity for committing crimes involving sexual misconduct. 37 Unlike Vargas, the People never sought to introduce defendant’s prior bad acts as part of their direct case. As indicated during the Sandoval application, the People sought only to cross-examine defendant about his prior bad acts because of their direct probative value on his credibility (T. 6). In granting the People’s application, the court struck an appropriate balance permitting the prosecution an opportunity to impeach defendant’s credibility without giving the jury an opportunity to conclude that, because defendant committed robberies in 1982, he must have committed this robbery in 2008. See Hayes, 97 N.Y.2d at 208 (“Given the absence of any absolute prohibition on inquiry into the nature of prior similar crimes, we conclude that the trial court did not abuse its discretion, as alleged, in its Sandoval ruling, but rather weighed appropriate concerns and limited both the number of convictions and the scope of permissible cross-examination”). Nonetheless, defendant claims that this ruling “essentially prohibited him from testifying because defendant was the only one who could fully explain his defense to the jury” (defendant’s brief, p. 33). As a procedural matter, this argument is not preserved for appellate review. Prior to the court’s ruling, defendant was given an opportunity to argue why inquiry into his prior bad acts would be unduly prejudicial and the entirety of his argument related to the age of the robbery convictions (T. 8), the 1998 drug conviction as the product of a drug addiction, and the potential for the jury to “speculate wildly about why he was 38 violated and for what reasons he was considered to have not be leading [sic] a law abiding life when released from prison” (T. 8). The purpose of preservation is the “scrupulous insistence upon the People’s ‘evidentiary opportunity to counter’ the defendant’s assertions, a concept that translates into an exacting scrutiny of the degree to which the People have had a ‘fair opportunity to present their proof’ on the issues advanced by the defendant on the appeal” (People v. Jones, 81 A.D.2d 22, 32-33(2d Dept. 1981), citing People v. Tutt, 38 N.Y.2d 1011, 1013 [1976], and People v. Martin, 50 N.Y.2d 1029, 1031 [1980]). Because defendant never once argued that he would be unduly prejudiced by an unfavorable Sandoval ruling based on his position as the “only one who could fully explain his defense the jury,” this Court should decline to rule on this argument (defendant’s brief, p. 33). Even if, arguendo, defendant’s claim was preserved, it is still meritless. The absence of other witnesses to corroborate his defense theory did not “mandate a specific outcome, as a hearing court may conclude that this factor increases the importance of defendant's credibility” (Hayes, 97 N.Y.2d at 207-208). Defendant cannot escape cross-examination and impeachment simply by being the only witness available to testify on his behalf. Indeed, in such a situation, it is even more important that the prosecution be given an opportunity to impeach his credibility so that the jury is able to give his testimony the weight it deserves. Id. at 207 (“a criminal defendant who chooses to testify, like any other witness in a civil 39 or criminal action, may be cross-examined regarding prior crimes and bad acts that bear on the witness’s credibility or veracity”). Accordingly, defendant has failed to show that the court abused its discretion to the extent that it granted the People’s Sandoval application. Further, although the trial court did not abuse its discretion in making this Sandoval ruling, even if it had, such error would be harmless in light of the overwhelming evidence supporting defendant’s guilt. Police observed defendant on the private driveway of the exact location where a purported burglary was in progress. As police approached him and asked him to stop walking, defendant increased his pace, “briskly” walking across the street away from police officers. As Officer Fraterrigo approached defendant from behind, he was able to see a sledgehammer inside of defendant’s open, unzipped backpack. Following his detention, Officer Fraterrigo recovered, in addition to the sledgehammer, a crowbar from the backpack and a knife from defendant’s pocket. Within moments of placing defendant into handcuffs, Mr. Ederle arrived on the street and identified defendant (Fraterrigo: T. 456, 459-465). Although defendant may claim that he was simply a pawn in this scheme devised by Mr. Ederle to steal the football money, phone records show that calls had been made between defendant and Anthony Devita on Friday, January 18, 2008, following Samantha Sanchez’s visit to the bar, and again, on Sunday, January 20, 2008, following Mr. Devita’s visit to 40 the bar (T. 815, 815A; People’s 57, 58, and 59). Had Mr. Ederle been involved in this scheme, it would make no sense for Mr. Devita to come to the bar to do reconnaissance on the football pools, or for Samantha Sanchez to set up an appointment for defendant to see the party room, or for defendant to show up to the location with a sledgehammer and crowbar. Based on this evidence, defendant’s guilt of second-degree robbery was established beyond a reasonable doubt and any error in the court’s Sandoval ruling is, therefore, harmless. See People v. Duggins, 1 A.D.3d 450 (2003) (“no significant probability that jury would have acquitted defendant” but for court’s Sandoval ruling). Accordingly, defendant’s claim that the trial court abused its discretion to the extent that it granted the Sandoval application should be rejected. 41 CONCLUSION THE JUDGMENT APPEALED FROM SHOULD BE AFFIRMED. Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent NANCY D. KILLIAN REBECCA L. JOHANNESEN Assistant District Attorneys of Counsel March 25, 2015 42 PRINTING SPECIFICATIONS STATEMENT This brief was prepared on a Microsoft Word processing system, in Times New Roman typeface, font size 14, and footnote font size 12, and contains 9,851 words as counted by the Microsoft Word counting system.