         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
513
KA 09-01309
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DIALLO HAMMOND, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (EUGENE T. PARTRIDGE,
III, OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered June 9, 2009. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree,
robbery in the second degree, and criminal possession of stolen
property in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of robbery in the first degree (Penal Law § 160.15 [4]),
robbery in the second degree (§ 160.10 [1]), and criminal possession
of stolen property in the fifth degree (§ 165.40), defendant contends
that reversal is required inasmuch as he proved the affirmative
defense of duress pursuant to Penal Law § 40.00 (1) as a matter of
law. Although the People are incorrect that defendant failed to
preserve his contention for our review (see People v Gray, 86 NY2d 10,
19; People v Bastidas, 67 NY2d 1006, 1007, rearg denied 68 NY2d 907),
we nevertheless conclude that defendant’s contention lacks merit. The
jury was entitled to discredit defendant’s self-serving statements
that he was coerced into committing the crimes of which he was
convicted (see People v McKinnon, 78 AD3d 864, lv denied 16 NY3d 744)
and, viewing the evidence in light of the elements of the crimes as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the jury’s rejection of that defense is not against the
weight of the evidence (see id.; People v Zilberman, 297 AD2d 517,
518, lv denied 99 NY2d 566; see generally People v Bleakley, 69 NY2d
490, 495).

     We reject the further contention of defendant that Supreme
Court’s Sandoval ruling constitutes an abuse of discretion. The
similarity between the prior convictions and the instant crimes does
                                 -2-                           513
                                                         KA 09-01309

not by itself preclude cross-examination concerning those prior
convictions (see People v Hayes, 97 NY2d 203, 206), and here the prior
convictions either concern defendant’s credibility or are indicative
of his willingness to place his own interests above those of society
(see People v Arguinzoni, 48 AD3d 1239, 1240-1241, lv denied 10 NY3d
859; People v Rupnarain, 299 AD2d 498, lv denied 99 NY2d 619; People v
Freeney, 291 AD2d 913, 914, lv denied 98 NY2d 637).

     Defendant correctly concedes that he failed to preserve for our
review his contention with respect to alleged prosecutorial misconduct
(see CPL 470.05 [2]), and 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]). Additionally, we reject defendant’s contention that
the court committed reversible error based on the manner in which it
responded to two jury notes (see generally People v O’Rama, 78 NY2d
270, 277-278). Finally, the sentence is not unduly harsh or severe.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
