

People v Macaiba (2017 NY Slip Op 03141)





People v Macaiba


2017 NY Slip Op 03141


Decided on April 25, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 25, 2017

Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels, Webber, JJ.


3843 3606/11

[*1]The People of the State of New York, Respondent,
v Jose Macaiba, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.

Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered November 20, 2012, convicting defendant, after a jury trial, of two counts each of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and identity theft in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.
The court's Sandoval  ruling balanced the appropriate factors and was a provident exercise of discretion (see People v Hayes , 97 NY2d 203 [2002]; People v Pavao , 59 NY2d 282, 292 [1983]). Out of defendant's extensive record, the court only permitted inquiry into two theft-related convictions, without permitting inquiry into the underlying facts. Although defendant asserts that the People should only have been permitted to elicit defendant's conviction of unspecified felonies, these theft-related crimes were highly probative of credibility, and it was an appropriate exercise of the court's discretion to permit these convictions to be identified in order to assist the jury in evaluating defendant's testimony.
The court providently exercised its discretion in permitting the People to introduce evidence that, in addition to using two debit cards that had been in the victim's lost wallet, as charged in the indictment, defendant also attempted to use a credit card from the same wallet. The evidence concerning the third card was relevant and probative since it went to the issue of defendant's knowledge that the first two cards were stolen (see People v Radoncic , 259 AD2d 428 [1st Dept 1999], lv denied  93 NY2d 1005 [1999]), and the third card had minimal, if any, prejudicial effect under the circumstances. Defendant did not preserve his claim that the court should have given a limiting instruction regarding the use of the third card, and we decline to review it
in the interest of justice. As an alternative holding, we find the lack of such an instruction to be harmless.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 25, 2017
CLERK


