        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1327
KA 10-01107
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ISIAH WILLIAMS, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered July 24, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a forged
instrument in the second degree (four counts) and criminal possession
of stolen property in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Monroe County Court for resentencing in accordance with the following
Memorandum: In appeal No. 2, defendant appeals from a judgment
convicting him upon a jury verdict of four counts of criminal
possession of a forged instrument in the second degree (Penal Law §
170.25) and one count of criminal possession of stolen property in the
fifth degree (§ 165.40). In appeal No. 3, he appeals from a judgment
convicting him upon a jury verdict of eight counts of criminal
possession of a forged instrument in the second degree (§ 170.25), two
counts of petit larceny (§ 155.25), and one count each of grand
larceny in the third degree (§ 155.35 [1]), identity theft in the
first degree (§ 190.80 [2]), and scheme to defraud in the first degree
(§ 190.65 [1] [b]).

     We first address the contentions of defendant with respect to
appeal No. 2 that are preserved for our review. Contrary to
defendant’s contention, defense counsel neither became a witness
against defendant nor made any statements adverse to him (see People v
Viscomi, 286 AD2d 886, 886, lv denied 97 NY2d 763; People v Caple, 279
AD2d 635, 636, lv denied 96 NY2d 798; see also People v Rivers, 296
AD2d 861, 862, lv denied 99 NY2d 539). We reject defendant’s
contention that County Court’s pretrial Molineux ruling constitutes an
abuse of discretion (see People v Molineux, 168 NY 264, 293-294;
People v Siplin, 66 AD3d 1416, 1417, lv denied 13 NY3d 942; People v
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Gonzalez, 62 AD3d 1263, 1265, lv denied 12 NY3d 925). Moreover, the
court’s limiting instruction “served to alleviate any potential
prejudice resulting from the admission of the evidence” (People v
Alke, 90 AD3d 943, 944, lv denied 19 NY3d 994; see People v Freece, 46
AD3d 1428, 1429, lv denied 10 NY3d 811). Defendant’s further
contention that the court abused its discretion in overruling defense
counsel’s objection to the scope of the People’s redirect examination
of a witness lacks merit. “[D]efendant opened the door to the
redirect examination by only partially exploring on cross-examination
the issue whether the witness and defendant had engaged in criminal
activity together in the past, rendering further examination and
clarification on that issue appropriate” (People v Blair, 94 AD3d
1403, 1404, lv denied 19 NY3d 971; see People v Massie, 2 NY3d 179,
183-185). Contrary to defendant’s contention, we also conclude that
the court did not err in determining that the identification of
defendant by two of the People’s witnesses was confirmatory (see
People v Rodriguez, 79 NY2d 445, 449-452; People v Cancer, 16 AD3d
835, 838-839, lv denied 5 NY3d 826; People v Lainfiesta, 257 AD2d 412,
415-416, lv denied 93 NY2d 926).

     We next address the contentions defendant raises with respect to
appeal No. 2 that are unpreserved for our review. Defendant’s
contention that the court erred in allowing a witness to testify that
he had allegedly committed uncharged crimes outside the scope of the
Molineux ruling is not properly before us inasmuch as defendant did
not object at the time of that testimony (see People v Manning, 67
AD3d 1378, 1380, lv denied 14 NY3d 803). We decline to exercise our
power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Moreover, “[b]y failing to object
to the court’s ultimate Sandoval ruling, defendant [also] failed to
preserve for our review his further contention . . . that the ruling
constitutes an abuse of discretion” (People v Tolliver, 93 AD3d 1150,
1151, lv denied 19 NY3d 968). In any event, we conclude that the
court’s Sandoval ruling did not constitute a “ ‘clear abuse of
discretion’ ” warranting reversal (id. at 1151-1152). Where, as here,
“the convictions that the People seek to use are for crimes of
individual dishonesty, the convictions should usually be admitted on a
trial for similar charges, notwithstanding the risk of possible
prejudice, because the very issue on which the offer is made is that
of the veracity of the defendant as a witness in the case” (People v
Williams, 98 AD3d 1234, 1235 [internal quotation marks omitted]).

     We next address defendant’s contentions relating to appeal No. 3.
Defendant’s contention that the court erred in failing to correct an
alleged inconsistency between the verdict sheet and the jury’s
response to the poll concerning its verdict on the third count of the
indictment is unpreserved for our review (see People v Mercado, 91
NY2d 960, 963; People v Shaver, 86 AD3d 800, 802-803, lv denied 18
NY3d 962, reconsideration denied 19 NY3d 967; People v Lynch, 81 AD3d
1292, 1292-1293, lv denied 17 NY3d 807). In any event, “ ‘[b]ased on
the minutes and the jury verdict sheet,’ ” it is clear that the clerk
merely misspoke when she indicated that the jury had acquitted
defendant of criminal possession of a forged instrument in the second
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                                                         KA 10-01107

degree as charged in the third count of the indictment, and that the
jury had actually found defendant guilty of that count (Lynch, 81 AD3d
at 1293). Further, we note that the parties do not dispute that the
fourth count of the indictment, which charged defendant with petit
larceny, was later dismissed on the People’s consent by an order of
County Court (Vincent Dinolfo, J.), determining defendant’s motion
pursuant to CPL article 440. Consequently, defendant’s contentions
that the verdict convicting him of that crime is against the weight of
the evidence, and that the prosecutor failed to correct perjured
testimony with respect to that count, are academic.

     Defendant next contends that the verdict is against the weight of
the evidence insofar as it convicted him of criminal possession of a
forged instrument in the second degree under count five of the
indictment and petit larceny as a lesser included offense of grand
larceny in the fourth degree under count seven of the indictment.
Viewing the evidence in light of the elements of those crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject that contention (see generally People v Bleakley, 69 NY2d 490,
495). Defendant’s further contention that the court erroneously
admitted evidence of uncharged crimes not authorized by the Molineux
ruling lacks merit (cf. People v Ventimiglia, 52 NY2d 350, 361-362).

     We agree with defendant, however, that the court erred in failing
to suppress the in-court identification of defendant by the witness
who specifically linked him at trial to the charge set forth in count
six of the indictment on the ground that it was based on an unduly
suggestive photo array procedure. Contrary to the People’s assertion,
this contention is preserved for our review (see People v Feingold, 7
NY3d 288, 290). On the merits, the People did not meet their initial
burden of establishing “the reasonableness of the police conduct and
the lack of any undue suggestiveness” with respect to the first of two
photo arrays in which the subject witness identified defendant
inasmuch as there was no testimony with respect to that photo array
(People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833; see People
v Coleman, 73 AD3d 1200, 1203). Contrary to the People’s further
assertion, the error in admitting that identification testimony is not
harmless beyond a reasonable doubt (cf. People v Siler, 45 AD3d 1403,
1403, lv denied 10 NY3d 771; People v Davis, 15 AD3d 930, 931, lv
denied 5 NY3d 761). We therefore grant that part of defendant’s
omnibus motion seeking to suppress the identification testimony with
respect to count six of the indictment.

     We further conclude with respect to both appeals, however, that
the court erred in allowing defendant to proceed pro se. Here, prior
to sentencing in appeal No. 2, the court granted defendant’s request
to proceed pro se after he made what were, in the court’s view,
baseless accusations against his respective attorneys. Defendant
subsequently proceeded pro se at sentencing at the first trial, i.e.,
the trial at issue in appeal No. 2, and he likewise proceeded pro se
throughout the second trial, i.e., the trial at issue in appeal No. 3.
We conclude that the court erred in allowing defendant to proceed pro
se inasmuch as it did not “undertake a searching inquiry . . . to
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                                                         KA 10-01107

insur[e] that . . . defendant [was] aware of the dangers and
disadvantages of proceeding without counsel” (People v Crampe, 17 NY3d
469, 481 [internal quotation marks omitted]; see People v Allen, 99
AD3d 1252, 1253). Moreover, defendant did not forfeit his right to
counsel. “ ‘While egregious conduct by defendants can lead to a
deemed forfeiture of the fundamental right to counsel’ . . . there was
no such conduct by defendant here to warrant ‘an extreme, last-resort
forfeiture analysis’ ” (People v Bullock, 75 AD3d 1148, 1149-1150,
quoting People v Smith, 92 NY2d 516, 521). We further conclude that
the tainted proceedings adversely impacted defendant, thereby
warranting vacatur of the sentence in appeal No. 2 and reversal of the
judgment in appeal No. 3 (see Allen, 99 AD3d at 1253; see generally
People v Wardlaw, 6 NY3d 556, 559). We further note that the new
trial granted with respect to appeal No. 3 should be preceded by a
hearing to determine whether the subject witness with respect to count
six of the indictment has an independent basis for an in-court
identification of defendant (see People v Delamota, 18 NY3d 107, 119;
People v Wilson, 5 NY3d 778, 780).

     Finally, we have reviewed defendant’s remaining contentions and
conclude that they are either without merit or are rendered academic
as a result of our decision herein.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
