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

466
KA 11-01115
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DASZELL TAYLOR, DEFENDANT-APPELLANT.


GENESEE VALLEY LEGAL AID, INC., GENESEO (JEANNIE D. MICHALSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Livingston County Court (Robert B.
Wiggins, J.), rendered September 14, 2010. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
criminal possession of a weapon in the third degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the second degree (Penal Law
§ 120.05 [2]), and criminal possession of a weapon in the third degree
(§ 265.02 [1]). Defendant contends that County Court’s Sandoval
ruling denied him his right to a fair trial. “By failing to object to
the court’s ultimate Sandoval ruling, defendant failed to preserve
that contention for our review” (People v Poole, 79 AD3d 1685, 1685,
lv denied 16 NY3d 862). In any event, the court’s Sandoval ruling
does not constitute an abuse of discretion (see People v Smalls, 16
AD3d 1154, 1155, lv denied 5 NY3d 769). Contrary to defendant’s
contention, the court properly permitted his prior drug convictions to
be used for impeachment purposes inasmuch as the jury could have
considered them as a manifestation of defendant’s willingness to place
his own interests above that of the community (see generally People v
Newland, 83 AD3d 1202, 1203-1204, lv denied 17 NY3d 798). Moreover,
the fact that the convictions were 15 or more years old does not
require preclusion of those convictions for impeachment purposes (see
People v Fotiou, 39 AD3d 877, 878, lv denied 9 NY3d 843).

     We reject defendant’s further contention that the court erred in
instructing the jury on the use of deadly physical force rather than
the use of ordinary physical force (see People v Davis, 118 AD2d 206,
209, lv denied 68 NY2d 768). Defendant’s use of a pocket knife to
inflict injury on the victim clearly constituted the use of deadly
                                 -2-                           466
                                                         KA 11-01115

physical force (see id.). Contrary to defendant’s further contention,
the court correctly instructed the jury on the issue whether the
altercation with the victim occurred in defendant’s dwelling (see
People v Berk, 88 NY2d 257, 267, cert denied 519 US 859).

     We reject defendant’s contention that he was deprived of a fair
trial as a result of the court’s instruction to the jury on
consciousness of guilt. We conclude that there was “a sufficient
factual predicate to support a jury instruction on the concept of
flight as evidence of consciousness of guilt” (People v Cartledge, 50
AD3d 1555, 1556, lv denied 10 NY3d 957 [internal quotation marks
omitted]), and we note that the instruction given by the court was
consistent with the instruction set forth in the Pattern Criminal Jury
Instructions (see People v Muscarella, 132 AD3d 1288, 1289, lv denied
26 NY3d 1147).

     Finally, there is no merit to defendant’s contention that he was
entitled to have the jury instructed on the issue of justification
with respect to the criminal possession of a weapon count (see People
v Pons, 68 NY2d 264, 267).




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
