People v. Ellis ( 1992 )

— Judgment, Supreme Court, New York County (Clifford A. Scott, J.), rendered March 5, 1990, convicting defendant, after a jury trial, of one count of robbery in the first degree and two counts of robbery in the second degree and sentencing him, as a predicate felony offender, to concurrent, indeterminate terms of from 12 Vi to 25 years and 7 Vi to 15 years imprisonment, respectively, affirmed.

There appears to be no dispute among us regarding the trial evidence, which established that, after shoplifting 25 washcloths from the towel department of Woolworth’s, defendant attempted to flee and was confronted and seized by store personnel in the course of which he slashed the store manager and another employee with a paring knife which he wielded. We part company, however, on the question of the correctness of the trial court’s Sandoval ruling, the adequacy of its supplemental instructions to the jury and the effectiveness of the representation rendered by defense counsel.

Regarding its Sandoval ruling, the court was informed that defendant had been arrested 53 times since 1974, was convicted 24 times of misdemeanors and three times of felonies and that the prosecutrix had no intention of cross-examining defendant about any convictions that were more than ten years old. The prosecutrix stated that she intended to ask about two stolen car convictions, a farebeating case, a possession of burglars tools conviction and some 14 petit larceny cases all of which involved shoplifting and several of which were similar to the facts of the instant case. She also stated that she did not intend to ask defendant about a 1984 disorderly conduct conviction, but would ask him about his use of ten aliases in the past. Defense counsel asked the court to exclude questions about any of the petit larceny convictions and to permit inquiry only about the two auto theft felonies and the farebeating and burglars tools convictions.

In allowing the inquiry sought by the prosecution, the court noted that because a defendant specializes in one particular type of crime he should not be immunized from inquiry into such crimes because he was being tried for one of his specialties.

It is well settled that mere similarities between prior crimes and the crime presently charged do not alone require preclusion and the mere fact that a defendant has specialized in a particular type of crime does not insulate her or him from cross-examination about such crimes (People v Cain, 167 AD2d 131, 133, lv denied 77 NY2d 836). Under the circumstances, no abuse of the trial court’s discretion in permitting inquiry into the facts of the prior crimes is indicated inasmuch as crimes involving individual dishonesty such as theft are particularly relevant to the issue of credibility. (See, People v Sandoval, 34 NY2d 371, 377.) While the court’s discussion of the necessary balancing of the various factors involved might have been fuller, this is not an instance where the court abdicated its responsibility to exercise its discretion or abused such discretion.

Similarly, while the court made several statements which would have been better left unsaid and some of its explanations could have been clearer during its conscientious attempts to respond to the jury’s, at times confusing, questions during its two days of deliberations, nevertheless, its supplemental instructions when considered in full and in context neither misstated the applicable law nor tended, in the end, to confuse or coerce the jury.

The excerpts quoted by the dissent reflect only part of the colloquy engendered by the jury’s second and third notes. There is no complaint about the court’s original charge to the jury, nor is there any quarrel with the court’s answers to three other notes, one earlier which asked the court to clarify robbery in the first and second degree and two later, which ended with a final request that the court reread the elements of robbery in the second degree. Fifteen minutes later, the jury returned with its verdict, convicting defendant of one count of robbery in the first degree and two counts of robbery in the second degree, but acquitted him of two counts of assault in the second degree. We would note that, although we disapprove of the court’s statement that it would not accept any partial verdict, this is not a case where such comment was in response to a statement that the jury was hopelessly deadlocked, but rather an inquiry of a conjectural nature.

While the trial court must respond meaningfully to the jury’s questions, it possesses some discretion in framing its supplemental instructions, and, in gauging the sufficiency of its responses, we must consider " 'the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant’ ” (People v Almodovar, 62 NY2d 126, 131-132, quoting People v Malloy, 55 NY2d 296, 302, cert denied 459 US 847). Moreover, since the trial court is in the best position to interpret the jury’s request, it has discretion to fashion the appropriate response and may even respond by repeating its earlier instructions on the same subject. (People v Steinberg, 170 AD2d 50, 71-72, lv granted 78 NY2d 1081, citing People v Malloy, supra, at 301-304.) Applying the foregoing standards to the trial court’s responses to the jury’s questions, any error should be deemed, at worst, harmless in light of the undisputed trial evidence.

Finally, defendant’s present complaints about the adequacy of his assigned trial counsel’s representation amount, as is often the case, to nothing more than Monday morning quarterbacking and second guessing. We again note that contrary to the statement in the dissent, defense counsel specifically and in detail took exception to the specific supplemental instructions excerpted therein. This is simply not a case where cumulative errors and omissions on the part of defense counsel led to the conclusion that the defendant was deprived of the meaningful assistance of counsel. Concur — Sullivan, J. P., Milonas and Kupferman, JJ. Smith and Kassal, JJ., each dissent in a separate memorandum, all as follows: