People v. Rivera

Mar 7, 2006
Versions:27 A.D.3d 491
810 N.Y.S.2d 333

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The defendant has not preserved for appellate review his contention that the jury charge regarding interested witnesses was unbalanced (see CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 [1989]). In any event, the trial court‘s charge adequately conveyed to the jury the appropriate standard for evaluating the witnesses’ testimony (see People v Inniss, 83 NY2d 653, 658-659 [1994]; People v Agosto, 73 NY2d 963, 967 [1989]; People v Rivera, 307 AD2d 369 [2003]; People v Johnson, 284 AD2d 344 [2001]; People v Oberhauser, 272 AD2d 559 [2000]; People v Smith, 240 AD2d 600 [1997]).

However, pursuant to CPL 720.20 (1), the sentencing court has a statutory obligation to determine, on the record, whether an eligible youth should be afforded youthful offender treatment when, as here, the issue was properly raised (see People v Martinez, 301 AD2d 615 [2003]). The sentencing court failed to adequately place on the record its reasons for denying the defendant youthful offender status. Therefore, the defendant‘s sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing after determining if the defendant should be sentenced as a youthful offender. We express no opinion as to whether the Supreme Court should afford youthful offender status to the defendant.

The defendant‘s remaining contention is without merit.

Florio, J.P., Miller, Goldstein and Lunn, JJ., concur.

Ordered that the judgment is affirmed.

The defendant contends that the specific nature of the prosecutor‘s questions to a defense witness improperly impeached the witness and rendered the prosecutor an unsworn witness. The defendant‘s contention is not preserved for appellate review (see CPL 470.05 [2]; People v Tevaha, 84 NY2d 879 [1994]; People v Gagliardo, 307 AD2d 934 [2003]; People v Materon, 276 AD2d 718, 719 [2000]; People v West, 212 AD2d 651, 652 [1995]). In any event, the defendant‘s contention is without merit. The prosecutor did not inject the issue of her own credibility into the trial, express her personal views on any of the evidence, suggest facts not in evidence, or vouch for the People‘s witnesses (see People v Alexander, 191 AD2d 498 [1993]; compare People v Upshaw, 138 AD2d 761, 762 [1988]).

The defendant has not preserved for appellate review his contention that the jury charge regarding interested witnesses was unbalanced (see CPL 470.05 [2]; People v Udzinski, 146 AD2d 245 [1989]). In any event, the trial court‘s charge adequately conveyed to the jury the appropriate standards for evaluating the witnesses’ testimony (see People v Inniss, 83 NY2d 653, 658-659 [1994]; People v Agosto, 73 NY2d 963, 967 [1989]; People v Rivera, 307 AD2d 369 [2003]; People v Johnson, 284 AD2d 344 [2001]; People v Oberhauser, 272 AD2d 559 [2000]; People v Smith, 240 AD2d 600 [1997]).

The defendant‘s remaining contentions do not require reversal. Florio, J.P., Miller, Goldstein and Lunn, JJ., concur.