People v. Herrera

Appellate Division of the Supreme Court of New York

People v. Herrera

245 A.D.2d 12, 665 N.Y.S.2d 643, 1997 N.Y. App. Div. LEXIS 11988

Appellate Division of the Supreme Court of the State of New York·Decided December 2, 1997·Published·Cited by 3 cases

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered April 13, 1993, convicting defendant, after a jury trial, of murder in the second degree and arson in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 25 years to life and 12V2 to 25 years, respectively, unanimously affirmed.

The court properly admitted testimony that defendant made a threatening gesture to a prosecution witness during a break in that witness’s testimony (People v Plummer, 36 NY2d 161). The throat-slitting gesture was highly probative of defendant’s consciousness of guilt and was admissible irrespective of the possibility of innocent explanations (People v Yazum, 13 NY2d 302).

The defendant’s claim on appeal concerning the court’s Sandoval ruling is unpreserved and we decline to review it.

We perceive no abuse of sentencing discretion. Concur— Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

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—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered April 13, 1993, convicting defendant, after a jury trial, of murder in the second degree and arson in the second degree, and sentencing him, as a second violent felony offender, to consecutive terms of 25 years to life and 12V2 to 25 years, respectively, unanimously affirmed.

The court properly admitted testimony that defendant made a threatening gesture to a prosecution witness during a break in that witness’s testimony (People v Plummer, 36 NY2d 161). The throat-slitting gesture was highly probative of defendant’s consciousness of guilt and was admissible irrespective of the possibility of innocent explanations (People v Yazum, 13 NY2d 302).

The defendant’s claim on appeal concerning the court’s Sandoval ruling is unpreserved and we decline to review it.

We perceive no abuse of sentencing discretion. Concur— Rosenberger, J. P., Ellerin, Nardelli, Williams and Andrias, JJ.

People v. Herrera, 245 A.D.2d 12, 665 N.Y.S.2d 643, 1997 N.Y. App. Div. LEXIS 11988 (N.Y. Ct. App. 1997).

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Opinion

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