                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   104895
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

WADE McCOMMONS, Also Known as
   SINCERE, Also Known as
   SIN,
                    Appellant.
________________________________


Calendar Date:   September 8, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


     Robert A. Regan, Glens Falls, for appellant.

      Robert M. Carney, District Attorney, Schenectady, for
respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered December 19, 2011 in Schenectady County, upon a verdict
convicting defendant of the crimes of burglary in the first
degree (two counts), attempted robbery in the first degree (six
counts), unlawful imprisonment in the first degree, murder in the
second degree, manslaughter in the second degree and criminal
possession of a weapon in the second degree (two counts).

      In May 2009, an armed man forced his way into the home of a
woman and her nine-year-old daughter in the City of Schenectady,
Schenectady County, held a gun to the woman's head and demanded
money. The daughter escaped and summoned help, and the intruder
                               -2-                104895

fled. Nine days later, an armed man attempted to rob a
Schenectady convenience store and grabbed a customer named Laurel
Teer. When she struggled, he struck her on the head with his
weapon, which discharged and killed her.

      After an investigation, defendant was arrested and charged
with various crimes arising from both incidents. Supreme Court
denied defendant's pretrial motion to sever the indictments from
the separate criminal transactions. Thereafter, Supreme Court
conducted a combined Sandoval and Molineux hearing and issued a
limited ruling permitting the People to elicit testimony and
submit evidence regarding certain aspects of defendant's criminal
and prison disciplinary history and his prior bad acts.
Following a jury trial, defendant was convicted of burglary in
the first degree (two counts), attempted robbery in the first
degree (two counts) and unlawful imprisonment in the first degree
arising from the home invasion. As to the convenience store
shooting, he was convicted of murder in the second degree,
manslaughter in the second degree, attempted robbery in the first
degree (four counts) and criminal possession of a weapon in the
second degree (two counts). Defendant was sentenced, as a second
felony offender, to an aggregate prison term of 45 years to life.
He appeals.

      Defendant contends that his motion for severance should
have been granted pursuant to CPL 200.20 (3) (a) on the ground
that the People's identification evidence connecting him with the
home invasion was stronger than that pertaining to the
convenience store shooting. In his motion, however, defendant
relied solely upon a different claim, premised upon CPL 200.20
(3) (b), that he has now abandoned. Accordingly, his appellate
argument is unpreserved (see People v Montalbano, 285 AD2d 562,
562 [2001], lv denied 97 NY2d 642 [2001]; People v Jones, 224
AD2d 334, 335 [1996], lv denied 88 NY2d 937 [1996]; People v
Bouyea, 142 AD2d 757, 758-759 [1988]).1 In any event, defendant


     1
        Supreme Court determined that the offenses were properly
joined under CPL 200.20 (2) (c) and (d) and, as it had not
reviewed the grand jury minutes, declined to address the other
statutory criteria.
                               -3-               104895

was not entitled to discretionary severance unless he
demonstrated that the only basis for joinder was the similarity
of the charges under CPL 200.20 (2) (c) and further made the
requisite showing of good cause (see CPL 200.20 [3]; People v
Lane, 56 NY2d 1, 7 [1982]; People v Raucci, 109 AD3d 109, 117
[2013], lv denied 22 NY3d 1158 [2014]). We discern no reason to
invoke our interest of justice jurisdiction to take corrective
action.

      Next, we reject defendant's contention that Supreme Court
erred in its Sandoval ruling permitting the People to cross-
examine defendant, if he testified at trial, about a 2003
conviction for criminal contempt in the first degree, a 2003
probation violation and a 2010 administrative finding of
obstruction of governmental administration.2 Contrary to
defendant's claim, the fact that an administrative finding in a
prison disciplinary proceeding does not constitute a criminal
conviction does not preclude its use in cross-examination where,
as here, its probative value on the issue of a defendant's
credibility outweighs its potential prejudicial effect (see
People v Adams, 39 AD3d 1081, 1082 [2007], lv denied 9 NY3d 872
[2007]; People v Porter, 305 AD2d 933, 934 [2003], lv denied 100
NY2d 586 [2003]).

      The 2003 contempt conviction and probation violation were
not too remote in time to be of probative value. Defendant was
incarcerated for two of the six years that elapsed between the
2003 events and the 2009 crimes (see People v Ortiz, 156 AD2d
197, 198 [1989], lv denied 76 NY2d 740 [1990]), and it is well
established that "'there is no bright-line rule of exclusion
based upon age of conviction'" (People v Martin, 136 AD3d 1218,
1219 [2016], lv denied ___ NY3d ___ [Sept. 20, 2016], quoting
People v Wilson, 78 AD3d 1213, 1216 [2010], lv denied 16 NY3d 747
[2011]; see People v Portis, 129 AD3d 1300, 1303 [2015], lvs
denied 26 NY3d 1088, 1091 [2015]). The contempt conviction was
indicative of defendant's willingness to place his own interests
ahead of those of society and was therefore probative of his
credibility (see People v Grant, 7 NY3d 421, 424 n 2 [2006];


    2
        Defendant did not testify.
                              -4-                104895

People v Olson, 110 AD3d 1373, 1375-1376 [2013], lv denied 23
NY3d 1023 [2014]; People v Foster, 52 AD3d 957, 960-961 [2008],
lv denied 11 NY3d 788 [2008]). The probation violation likewise
bore upon his credibility (see People v Valenti, 199 AD2d 617,
617-618 [1993], lv denied 83 NY2d 811 [1994]). As for
defendant's contention that the probation violation was partially
premised upon two criminal charges that were never resolved,
Supreme Court limited its ruling by, among other things,
precluding inquiry into one of these unresolved charges. Any
error related to the court's failure to mention the other
unresolved charge was harmless, as the evidence against defendant
was overwhelming and there was no significant probability that he
would have been acquitted if the Sandoval ruling had been
different (see People v Grant, 7 NY3d at 425; People v Boodrow,
42 AD3d 582, 585 [2007]).

      Supreme Court's Molineux ruling was not an abuse of
discretion. Evidence of prior criminal conduct or bad acts is
inadmissible to establish a defendant's criminal propensity or
bad character, but may be admitted when it is relevant to some
material issue pertaining to the charged crime and its probative
value outweighs its potential for unfair prejudice (see People v
Cass, 18 NY3d 553, 560 [2012]; People v Ventimiglia, 52 NY2d 350,
359 [1981]). First, we find no error in the ruling relative to
the testimony of defendant's federal probation officer. This
witness testified that, a few days after the convenience store
shooting, he took a photograph of defendant in which he was
wearing a hooded sweatshirt that appeared to be identical in
style, color and detail to one worn by the shooter. The
photograph was relevant to the issue of defendant's identity as
the perpetrator of the crime (see People v Cass, 18 NY3d at 560),
and the fact that the witness was a federal probation officer was
necessary background information explaining why defendant was in
his presence and the circumstances that led the officer to
recognize the similarity in clothing (see People v Alnutt, 107
AD3d 1139, 1142 [2013], lv denied 22 NY3d 1136 [2014]; People v
Burnell, 89 AD3d 1118, 1120-1121 [2011], lv denied 18 NY3d 922
[2012]). Supreme Court limited the potential for any undue
prejudice by instructing the jury not to infer that defendant had
a propensity for criminality based upon the fact that he was on
federal probation (see People v Chestnut, 254 AD2d 525, 526
                              -5-                104895

[1998], lv denied 93 NY2d 871 [1999]).

      During the trial, a witness testified about an audiotaped
conversation that he had with defendant in which defendant made
several incriminating admissions and also made threatening
remarks directed at anyone who might reveal his role in the
convenience store shooting. The audiotape was admitted into
evidence and played for the jury. Supreme Court did not err in
its Molineux ruling permitting the evidence pertaining to the
threats, as they were inextricably entwined with defendant's
admissions of his role in the shooting and also evidenced
consciousness of guilt (see People v Wells, 141 AD3d 1013, 1019
[2016]; People v Bibbes, 98 AD3d 1267, 1269 [2012], lv denied 20
NY3d 931 [2012]; People v Peele, 73 AD3d 1219, 1221 [2010], lv
denied 15 NY3d 894 [2010]). Although there were some references
on the audiotape to the fact that defendant was on home detention
and electronic monitoring, these references were so inseparably
interwoven into the conversation that they could not readily have
been deleted. Doing so would have rendered it much more
difficult for jurors to understand the parties' statements, and,
thus, we find no error upon review. Further, the court provided
a limiting instruction directing jurors not to draw any inference
regarding defendant's criminal propensity or inclination to
commit the charged crimes from the fact that he was on home
detention.

      Supreme Court did not err in permitting the People to
establish that defendant was a gang member. Although the charged
crimes were not directly related to his gang affiliation, the
evidence provided background information that assisted the jury
in understanding the audiotaped conversation, as well as
defendant's trusting relationships with, among others, certain
gang members to whom he made admissions and a gang member who
loaned him the gun used in committing the crimes (see People v
Wells, 141 AD3d at 1019-1020; People v Viera, 133 AD3d 622, 624
[2015], lv denied 26 NY3d 1151 [2016]). Notably, the court again
mitigated any undue prejudice by providing limiting instructions.

      Supreme Court likewise did not err in allowing evidence
related to defendant's drug use. Proof of a defendant's
uncharged drug activity may be admissible when it is relevant to
                               -6-                104895

such matters as identity, intent or motive or "[is] necessary to
complete the narrative of the episode" (People v Murphy, 235 AD2d
933, 935 [1997], lv denied 90 NY2d 896 [1997]; see People v
Smith, 63 AD3d 1301, 1303 [2009], lv denied 13 NY3d 862 [2009]).
Here, defendant's accomplices in the home invasion testified that
his motive in committing that crime was to steal drugs from a
drug dealer who defendant believed resided in the apartment where
the crime occurred. Several other references to defendant's drug
use and involvement with drug users, including testimony about a
positive drug test, provided necessary background information and
were not unduly prejudicial. Supreme Court mitigated the
prejudicial effect of the evidence about the positive drug test
by giving a limiting instruction (see People v Barton, 13 AD3d
721, 724 [2004], lv denied 5 NY3d 785 [2005]).

      Defendant next contends that the People's evidence was
legally insufficient to support the convictions related to the
convenience store shooting, asserting that the evidence was
purely circumstantial and failed to prove his identity as the
shooter. This contention is unpreserved for appellate review, as
defendant's trial motion for dismissal was limited to claims
related to the home invasion and included no arguments pertaining
to the convenience store shooting (see People v Powell, 128 AD3d
1174, 1175 [2015]; People v Barringer, 54 AD3d 442, 443 [2008],
lvs denied 11 NY3d 830, 836 [2008]; People v Orcutt, 49 AD3d
1082, 1085 [2008], lv denied 10 NY3d 938 [2008]). In any event,
several witnesses testified that, after the shooting, they heard
defendant state that he had recently shot and killed someone.
One of these witnesses, a fellow gang member, testified that he
lent a gun to defendant and that defendant later told him that he
had used this weapon to shoot the victim at the convenience
store. The evidence established that this gun had distinctive
characteristics resembling the weapon used in both the home
invasion and the shooting, and that defendant possessed it around
the time of both crimes.3 Several witnesses who knew defendant
identified him as the masked shooter who appeared in surveillance
video of the convenience store crime, based upon his voice, build


     3
        DNA evidence and other proof established defendant's
identity as the perpetrator of the home invasion.
                              -7-                  104895

and other characteristics. Given this proof and other evidence
establishing defendant's identity, we decline to exercise our
interest of justice jurisdiction to take corrective action (see
CPL 470.15 [3] [c]).

      Finally, defendant contends that his sentence is harsh and
excessive. In view of the nature and gravity of defendant's
crimes and his history of previous offenses involving violence
and the possession of weapons, we find no abuse of discretion or
extraordinary circumstances warranting modification (see People v
Callicut, 101 AD3d 1256, 1264-1265 [2012], lvs denied 20 NY3d
1096, 1097 [2013]).

     Egan Jr., Lynch, Rose and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
