THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JAMES M. MYRON, Appellant.
Appellate Division of the Supreme Court of New York, Second Department
814 N.Y.S.2d 198
Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, j.), rendered March 26, 1999, convicting him of scheme to defraud in the first degree (two counts), grand larceny in the third degree (four counts), grand larceny in the fourth degree (three counts), and forgery in the second degree (five counts), upon a jury verdict, and imposing sentence, including restitution in the sum of $29,431.
Ordered that the judgment is modified, on the law, by vacating the provisions of the sentence concerning restitution; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Rockland County, for a hearing and a new determination concerning the proper amount of restitution and the manner of payment thereof.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Dieppa, 285 AD2d 558 [2001]; People v Lynch, 283 AD2d 442 [2001]).
The County Court properly denied the defendant’s speedy trial motion. The defendant contends that the time period from May 13, 1997 until September 17, 1998, the period during which he was held in custody in the State of California on unrelated charges, should have been charged to the People for speedy trial purposes because the People were not diligent in their efforts to obtain his presence in New York to stand trial on the charges in this case (see
The defendant’s contention that his arraignment was improper pursuant to
The defendant’s challenge to the County Court’s Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) is without merit. The County Court struck an appropriate balance between the probative value of the defendant’s prior crimes on the issue of his credibility and the possible prejudice to the defendant (see People v Springer, 13 AD3d 657 [2004]; People v Mack, 6 AD3d 551 [2004]). The defendant failed to meet his burden of demonstrating that the prejudicial effect of the evidence of his prior convictions so outweighed its probative worth that its exclusion was warranted (see People v Sandoval, supra at 378; People v Simmons, 213 AD2d 433, 434 [1995]). The mere fact that some of the prior convictions were similar in nature to the instant offenses did not warrant their preclusion (see People v Mack, supra; People v Hallingquest, 295 AD2d 364 [2002]). The prior offenses were probative of the defendant’s willingness to place his interests above those of society (see People v Duffy, 36 NY2d 258, 262 [1975], cert denied 423 US 861 [1975]; People v Turner, 239 AD2d 447, 448 [1997]), and by precluding the prosecutor from eliciting the underlying facts of the defendant’s convictions, the County Court avoided any undue prejudice to the defendant (see People v Mack, supra at 551; People v Ricks, 135 AD2d 844, 845 [1987]). Finally, the fact that one of the defendant’s convictions was more than 20 years old did not, in and of itself, require preclusion of that conviction for impeachment purposes (see People v Turner, supra at 448; People v Washington, 240 AD2d 521, 522 [1997]; People v Smilovich, 157 AD2d 809, 810 [1990]).
The defendant’s contention that he was prejudiced as a result of the County Court’s jury instructions is without merit. The County Court’s charge, viewed in its entirety, adequately conveyed the appropriate legal standards to the jury (see People v Lawrence, 17 AD3d 697 [2005]; People v Mack, 115 AD2d 790, 791 [1985]; People v Simmons, 218 AD2d 677, 678 [1995]).
In addition, the defendant’s contention that he was prejudiced by the late disclosure of certain Rosario and Brady material (see Brady v Maryland, 373 US 83 [1963]; People v Rosario, 9 NY2d 286 [1961], cert denied 368 US 866 [1961]), is without merit. The defendant failed to demonstrate that he suffered any prejudice from the delay in disclosure (see
The People sustained their burden of proving, beyond a reasonable doubt, that the defendant was previously convicted of the felony upon which his adjudication as a second felony offender was based (see
As correctly conceded by the People, the County Court erred in failing to conduct a hearing on the issue of restitution. The record does not contain sufficient evidence to accurately determine the proper amount of restitution and the proper manner of payment (see
The defendant’s contentions regarding the charge to the jury after the close of the evidence, read-backs of trial testimony, and alternate jurors mingling with other jurors are unpreserved for appellate review and, in any event, without merit. The defendant’s remaining contentions are without merit.
Miller, J.P., Ritter, Spolzino and Dillon, JJ., concur.