People v. Hernandez

247 A.D.2d 912, 668 N.Y.S.2d 532, 1998 N.Y. App. Div. LEXIS 1255

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of 17 counts of criminal usury in the first degree (Penal Law § 190.42) and one count of possession of usurious loan records (Penal Law § 190.45) arising out of a series of loans to public assistance recipients who were customers of defendant’s grocery store.

We reject the argument of defendant that his conviction of 17 counts of criminal usury in the first degree is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

Most of Supreme Court’s evidentiary rulings concerning ledger books and a box containing numerous public assistance benefit cards were favorable to defendant. To the extent that the court ruled the evidence admissible, the court’s rulings were proper. The court did not err in refusing to strike the testimony of a prosecution witness who implicated defendant in five of the loan transactions and testified that he attempted to bribe her. Defendant’s subsequent motion to set aside the verdict on the ground that the witness allegedly recanted her testimony was properly denied.

Defendant was not deprived of a fair trial by prosecutorial misconduct. The court properly denied defendant’s motion to suppress the tangible evidence seized pursuant to search warrants for defendant’s home and store. The record supports the court’s determination, made after a Franks hearing (see, Franks v Delaware, 438 US 154), that the warrant application was sufficient to establish probable cause even without considering the challenged statements (see, People v Tambe, 71 NY2d 492, 505).

Finally, the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Affronti, J. — Criminal Usury, 1st Degree.)

Present — Denman, P. J., Pine, Hayes, Balio and Boehm, JJ.