McManus, Ateshoglou, Adams, Aiello & Apostolakos, PLLC (Suzanne J. Adams, Esq.), for appellant.Galvano & Xanthakis, P.C. (Constantine A. Pantazis, Esq.), for defendant Dimensional Stone & Tile.Nancy A. Luongo, Esq., for respondent (no brief filed).2014-1313 W C. 37 S. FIFTH AVE. CORP. v. DIMENSIONAL STONE & TILE — Appeal from a decision of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.; op 43 Misc 3d 1216[A], 2014 NY Slip Op 50665[U] [2014]), dated April 24, 2014, deemed from a judgment of the same court entered April 24, 2014 (see CPLR 5512 [a]). The judgment, upon a submission of undisputed facts, awarded plaintiff the principal sum of $4,371.92 as against defendant Penske Leasing & Rental.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a judgment dismissing so much of the action as is against defendant Penske Leasing & Rental.In this commercial claims action, plaintiff seeks to recover the principal sum of $4,371.92 for property damage it sustained when a vehicle it owned was hit by a vehicle that was owned by defendant Penske Leasing & Rental (Penske) but had been rented by Penske to, and was driven by an employee of, defendant Dimensional Stone & Tile (Dimensional). Defendants did not contest the underlying facts of the collision or the amount of plaintiff’s damages; nor did Dimensional deny that it had signed a truck rental agreement with Penske, pursuant to which Dimensional had agreed to provide liability insurance on the rental vehicle and to indemnify Penske against all claims, damages and expenses which arose from Dimensional’s use of the rental vehicle. There was no claim that Penske had been negligent or had engaged in criminal wrongdoing. Following written submissions by defendants, the City Court, relying on the case of ELRAC, Inc. v. Ward (96 NY2d 58 [2001]), concluded that the rental agreement permitted Penske to seek indemnification from Dimensional only to the extent that Penske’s liability exceeded the $10,000 minimum amount of liability insurance for property damage which, pursuant to Vehicle and Traffic Law §370 (1) (b), Penske was required to maintain on the vehicle. Since plaintiff’s damages had been less than the $10,000 statutory minimum insurance amount for property damage, the City Court found that Penske alone was liable to plaintiff. Judgment was entered on April 24, 2014, awarding plaintiff the principal sum of $4,371.92 as against Penske. The judgment did not dispose of plaintiff’s claim against Dimensional. This appeal by Penske ensued.Pursuant to Vehicle and Traffic Law §370 (1) and (3), entities engaged in the business of renting or leasing rental vehicles are required to file with the Commissioner of Motor Vehicles evidence of either a corporate surety bond or a liability insurance policy, or, if qualified to do so, a certificate of self-insurance, for each of their vehicles, for various specified sums, including, insofar as relevant to the case at bar, a minimum of $10,000 for property damage (Vehicle and Traffic Law §370 [1] [b]). Vehicle and Traffic Law §388 states generally that every owner of a motor vehicle shall be liable for any damage to person or property caused by the negligent use or operation of such motor vehicle. In 2001, in ELRAC, Inc. v. Ward (96 NY2d 58, 72), the Court of Appeals considered “the interplay of Vehicle and Traffic Law §§370 and 388 with the law of indemnification,” and held that Vehicle and Traffic Law §370 prohibited commercial renters and lessors of motor vehicles from seeking indemnification from their lessees for amounts up to the minimum insurance requirements.Thereafter, the Graves Amendment (49 USC §30106), which became effective on August 10, 2005, was enacted. The Graves Amendment exempts commercial renters and lessors of motor vehicles from liability for harm to persons or property that results or arises out of the use, operation or possession of such leased or rented vehicles, provided that there is no negligence or criminal wrongdoing on the part of the owner (see Graham v. Dunkley, 50 AD3d 55 [2008]). While it specifically supersedes state laws which impose such vicarious liability on the commercial renters and lessors of motor vehicles (see 49 USC §30106 [a]), the Graves Amendment includes a “savings clause,” which provides:“(b) Financial responsibility laws. — Nothing in this section supersedes the law of any State or political subdivision thereof —(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law” (49 USC §30106 [b]).The questions we are confronted with here are whether the $10,000 minimum liability insurance requirement for property damage, set forth in Vehicle and Traffic Law §370 (1) (b), falls within the “financial responsibility” provisions of the Graves Amendment’s savings clause, and, if so, whether, by reason of such savings clause, the commercial renter of a motor rental vehicle may be held vicariously liable for property damage caused by its lessee, up to a ceiling of $10,000.We conclude that the requirement of Vehicle and Traffic Law §370 (1) and (3), that commercial renters and lessors of motor rental vehicles file with the Commissioner of Motor Vehicles evidence of either a corporate surety bond or a liability insurance policy, or, if qualified to do so, a certificate of self-insurance, for each of their vehicles, constitutes a “financial responsibility law” within the meaning of the Graves Amendment, since it ensures that commercial renters and lessors of such vehicles will be financially capable of covering a statutorily specified minimum amount of damage for the types of liability which continue even following the passage of the Graves Amendment, i.e., when the liability is based on the commercial renters’ or lessors’ own negligence or criminal wrongdoing. However, while that requirement is explicitly not superseded under the Graves Amendment, its survival in no way undercuts the Graves Amendment’s absolute exemption of commercial renters and lessors of motor vehicles from liability for damages caused solely by the negligence of those who rent or lease from them; to hold otherwise would rescue every vicarious liability suit in New York State, at least up to the $10,000 statutory minimum insurance amount for property damage set forth in Vehicle and Traffic Law §370 (1) (b), and would, to that extent, render the federal preemption clause (US Const, art VI, cl 2) a nullity (see Garcia v. Vanguard Car Rental, USA, Inc. (540 F3d 1242, 1248 [11th Cir 2008]). We note too that appellate courts in New York have, under the Graves Amendment, consistently found commercial renters and lessors of motor vehicles to be 100 percent exempt from vicarious liability claims (see e.g. Antoine v. Kalandrishvili, 150 AD3d 941, 942 [2017] [leased vehicle]; Aviaev v. Nissan Infiniti LT, 150 AD3d 807 [2017] [leased vehicle]; Anglero v. Hanif, 140 AD3d 905 [2016] [rental vehicle]; Eisenberg v. Cope Bestway Express, Inc., 131 AD3d 1198, 1200-1201 [2015] [leased vehicle]; Bravo v. Vargas, 113 AD3d 579, 580 [2014] [rental vehicle]; Pedroli v. Mercedes-Benz USA, LLC, 94 AD3d 842, 843-844 [2012] [leased vehicle]; Ballatore v. HUB Truck Rental Corp., 83 AD3d 978, 979 [2011] [rental vehicle]; but see Matter of Allstate Ins. Co. v. ELRAC Inc., 26 Misc 3d 1234[A], 2010 NY Slip Op 50370[U] [Sup Ct, Kings County 2010]; ELRAC, Inc. v. Russo, 19 Misc 3d 1143[A], 2008 NY Slip Op 51155[U] [Nassau Dist Ct 2008]). We therefore hold that those portions of Vehicle and Traffic Law §370 which require commercial renters and lessors of motor vehicles to file with the Commissioner of Motor Vehicles evidence of either a corporate surety bond or a liability insurance policy, or, if qualified to do so, a certificate of self-insurance, for each of their vehicles, do not operate to impose vicarious liability to any extent upon such commercial renters and lessors, and that the City Court’s determination, which imposed such vicarious liability on Penske, failed to render substantial justice pursuant to the rules and principles of substantive law (see UCCA 1804-A, 1807-A).We note that any issues pertaining to Dimensional’s liability are not properly before us on this appeal by Penske.Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a judgment dismissing so much of the action as is against defendant Penske Leasing & Rental.TOLBERT and BRANDS, JJ., concur.IANNACCI, J.P., taking no part.November 30, 2017By: Marano, P.J., Tolbert, Garguilo, JJ.Nassau County Legal Aid Society (Jeremy L. Goldberg, Argun M. Ulgen of counsel), for appellant.Nassau County District Attorney (Andrea DiGregorio, Mary Faldich of counsel), for respondent.2015-877 N CR. THE PEOPLE v. TODD, NORMAN — Appeal from a judgment of the District Court of Nassau County, First District (Martin J. Massell, J.), rendered March 18, 2015. The judgment convicted defendant, upon a jury verdict, of stalking in the fourth degree (Penal Law §120.45 [1]). The appeal brings up for review the denial, after a hearing (Douglas J. Lerose, J.), of the branches of defendant’s omnibus motion seeking to suppress his statement to the police and identification testimony.ORDERED that the judgment of conviction is reversed, on the law, and the matter is remitted to the District Court for a new trial.An information, dated January 21, 2013, charged defendant with stalking in the fourth degree under Penal Law §120.45 (1). The factual part of the information alleged, in pertinent part, that, at about 4:50 p.m. on October 22, 2012:“Defendant Norman Todd placed the victim in a state of fear and alarm at her place of employment which is the McDonalds restaurant located at 1050 Front Street Uniondale. Your deponent states [that] part of the victim’s job description is working at the drive up window. The defendant engaged the victim in conversation by stating ‘you are so beautiful, you are my fantasy, I fantasize about you and the things I would do to you.’ Your deponent states after seeing the defendant she recognized him [as] someone who frequently comes to that McDonalds when she is working. Your deponent further states, while the victim was walking home from work on a Saturday or Sunday in July 2012 the defendant jumped out of some bushes on the corner of Chester [Street] and Oakley [Street in] Uniondale startling her. He then stated to your victim ‘I watch you walk home from work and why don’t you come with me.’On [December 28, 2012] the defendant did return to the McDonalds drive up window he saw that the victim was working at the first window where he paid for his order, the victim saw the defendant pull up [and] she recognized him and backed away from the window in an attempt not to be seen by the defendant. Your deponent further states the defendant then pulled his vehicle forward to the second window to pick up his food where he engaged in a conversation with [a male co-worker]. The witness stated the defendant said ‘You should hit that’ as he referred to the victim. Your deponent states the defendant then stated to [the] witness ‘no really you should f*ck that’ again referring to [the] victim. The defendant refused to leave the drive up window, he again asked [the] witness ‘are you going to?’ still referring to the victim.Your deponent states the defendant’s actions placed the victim in grave fear of physical injury that she had to change her name tag on her uniform so the defendant doesn’t know her first name.The above is based on information and belief the source of said information being the supporting depositions of the victim, the witness, [a] secured video surveillance of the defendant, the statement of admission of the defendant and your deponent’s investigation.”The video referenced in the information depicts defendant at the McDonald’s drive-thru window on October 22, 2012. It is undisputed that the video contains no sound.On October 22, 2012, the victim provided a supporting deposition, which, in pertinent part, states as follows:“I was working at the drive-thru, when an unknown male black, late 40′s, 6’3″, gray beard and glasses pulled up for his order in a dark colored SUV and stated ‘you are so beautiful, you are my fantasy. I fantasize about you & the things I would do to you,’ I was very scared at this point. The man [then] took his order [and] drove away. The car behind him heard the conversation and wrote down the license plate of the subject vehicle. It is [New York plate] FSW5272 which is a 2012 Honda Pilot, gray. After seeing this man [and] speaking to him, I remember seeing him often at the McDonald’s. I also remember on a Saturday or Sunday in July seeing this man. I was walking home from work when this man came out of the bushes and began to wave at me and said ‘I watch you walk home from work’ and ‘why don’t you come [with] me.’ Also, for the last few months, an unknown male has called McDonalds numerous times asking when I am working, what days [and] times [and] other things about me. My manager at the McDonalds is aware of the situation.”On January 21, 2013, the victim’s coworker signed a supporting deposition, which, in pertinent part, states as follows:“On Friday, December 28, 2012, I was working at my job at McDonalds [at] the drive through window. My coworker…was…working the other window. I noticed that [she] had backed away from her window. As a car pulled up it was [a] black SUV. The guy who was driving was a dark skinned male black with a grey and black beard. He was wearing glasses. I was working fast because the drive up was very busy. I gave the guy his food and he said ‘you should hit that’ as he [referred] to [the victim] at the other window. ‘No really you should f*ck her.’ The guy would not pull away from the window. He stayed there and I closed the window. When I looked back he was still at the window. I…already gave him his food. I opened the window and he said ‘are you going to’ again [referring] to [the victim]. He just was staring at me. He was creepy. I wanted him to leave because the line was getting longer. I said to him alright [yeah, yeah] as I tried to brush him off so he would leave. He finally left the drive up window. I told [the victim] what he said [and] she looked afraid. She said that’s the guy who has been stalking me. She then called her mother. The guy is tall and about 50 years old.”As part of an omnibus motion, defendant moved to suppress his statement to the police and the victim’s identification testimony. The District Court granted pretrial Huntley, Dunaway, Wade and Sandoval hearings. Defendant’s motion also sought to dismiss the information, together with the supporting depositions, as facially insufficient. In an order dated July 16, 2013, the District Court (Martin J. Massell, J.) denied the branch of defendant’s motion seeking to dismiss the information. The court determined that the “information gives the defendant notice that he is charged with engaging in a course of conduct directed at the complainant and that the alleged conduct was likely to cause reasonable fear of harm.”At the suppression hearing, a Nassau County police detective testified that he had become involved in a stalking investigation when a young female and her mother had come to the precinct to report the offense. She told the detective that, while she was working at the McDonald’s drive-thru window on October 22, 2012, a male drove up “and stated some inappropriate thing to her that placed her in fear for her safety.” She remembered him “from past incidents from being a customer and also from an incident that happened when she was walking home from work.” The man had previously “stepped out of some bushes and stated to her, []I watch you walk home from work every day. Why don’t you come with me.['] ” The man came back to the McDonald’s drive-thru in December. He passed her window and didn’t say anything to her. He went to the next window and spoke to her coworker. She described the man as a black male, approximately six feet three inches tall, in his late 40′s, with a gray beard, wearing a baseball hat. The victim provided the detective with the license plate number of the vehicle driven by the perpetrator, which she had received from a motorist that was on the line at the McDonald’s drive-thru window. The detective determined that the vehicle was a Honda Pilot, which was parked at a home in Uniondale. He also received a video taken on October 22, 2012, from the manager of the McDonald’s. The video contained no sound. The person driving the Honda Pilot in the video matched the description of the perpetrator that had been provided by the victim.The detective went to the address in Uniondale approximately 20 times in an attempt to locate the perpetrator. The Honda Pilot, bearing the same license plate number, and a 2008 black Ford Edge were parked at the address. At approximately 1:05 p.m. on January 21, 2013, the detective and his partner went to the address. A man, who matched the description of the perpetrator and was subsequently identified as defendant, exited the house, entered the black Ford Edge, and drove away. He saw defendant’s eyes in the rear view mirror. Defendant’s driving became “a little more erratic and his speed picked up.” Defendant made a U-turn in a shopping center parking lot, and then made a left turn out of the parking lot, while failing to yield to, and cutting off, a vehicle that was in front of him. The detective turned on his lights and sirens, and attempted to perform a motor vehicle stop. Defendant drove back to the house in Uniondale, where he stopped and was arrested. Defendant was transported to the precinct.The detective then prepared a photo array. Defendant’s photograph was obtained from the Department of Motor Vehicles. A computer provided “a selection of people who have similar features.” The detective has the ability to delete “the ones that are way off.” At 3:21 p.m. on January 21, 2013, the detective and his partner went to the victim’s home, interviewed her, and showed her the photo array. The detective used the array even though some of the photographs of the individuals were of different sizes, some had different hairlines and types of facial hair, and the backgrounds were different. The victim chose a photograph of defendant within seconds, stating that he was “the one…who has been stalking me at McDonalds.” Defendant was the same person the detective had arrested and who was in the video obtained from the McDonald’s manager. The victim circled, initialed, and dated the area around defendant’s photograph.At approximately 6:00 p.m. on January 21, 2013, the detective, at the precinct, advised defendant of his Miranda rights by using a Nassau County Police Department card. Defendant indicated that he understood the rights. The detective personally observed defendant sign the card. He did not stop after reciting each right to make sure defendant understood them. The detective wrote a statement while he interviewed defendant, who was not handcuffed at the time. Defendant reviewed the statement, and the detective read it back to him. Defendant made no corrections and indicated that the statement was true and accurate. Defendant never asked to speak to an attorney, and did not indicate that he wanted to remain silent. The statement, signed by defendant, provides in pertinent part, as follows:“My name is Norman Todd, I am 50 years old having been born on 2-4-1962. I reside at 63 East 177th Street in the Bronx, New York, apartment 4-A rear and at 1320 Admiral Lane in Uniondale…. I have been told by the detective that I have the right to remain silent and that any statements I make may be used against me in Court. I have been told that I have the right to talk with a lawyer before answering any questions or to have a lawyer present at any time. Further, I have been advised that if I cannot afford to hire a lawyer one will be furnished [for] me, if I wish, and I have the right to keep silent until I have had the chance to talk with a lawyer. I understand my rights and make the following statement freely and voluntarily. I am willing to give the statement without talking with a lawyer or having one present.I have been to the drive-up window at McDonalds on Front Street. I get McDonalds for my son and the other children. One time I saw a beautiful girl working at the drive-up window. I complimented the girl at the window by saying that she was beautiful and that she was my fantasy. I was only being flirtatious and complimentary. I did not mean any harm. I went back to the McDonalds at the end of December and I saw her working at the first window. I moved up to the next window and saw a young man working. I said to him you should hit that or you should get with that. Again I was just talking to him, man to man, I didn’t mean any harm or to make anyone afraid. I was referring to the girl at the other window. I am sorry if I made anyone afraid.”The statement was completed at about 6:30 p.m. The detective had not been with defendant continuously between 1:05 p.m. and 6:30 p.m. He did not know whether other officers had spoken to defendant when the detective had not been present.Defense counsel argued that defendant’s arrest was not based upon probable cause and that defendant’s statement should be suppressed “because he was clearly in custody and he was at the [police] station for several hours not free to leave and subject to custodial interrogation.” The detective did not know if any other person had spoken to defendant between the time he had been brought to the precinct and the time he had given his statement, a period of five hours. Counsel also argued that the photo array was unduly suggestive, and that defendant’s photograph appeared “to be zoomed in” as compared to the other photographs.The People argued that defendant’s arrest was supported by probable cause, as a witness had provided a description of the suspect and a license plate of the vehicle he had been driving. The detective ran the plate, obtained the address “and observed the defendant.” The video showed that there was “a significant amount of interaction between the complaining witness and the defendant and based on that the [detective] continued to conduct a thorough investigation.” Defendant subsequently committed a traffic violation. Defendant understood and waived his Miranda rights and signed a written waiver of those rights. He specifically indicated that he did not want to speak to a lawyer or remain silent. The photo array was computer-generated, and the computer, to some extent, selected photographs with characteristics similar to those of defendant. The “victim instantaneously identified the defendant.” The photographs in the array were all of black males with facial hair. The prosecutor conceded that the backgrounds of the photographs were different, and defendant’s photograph was “somewhat zoomed in a bit more,” but asserted that the array was not unduly suggestive.In a written decision dated July 21, 2014, the hearing court (Douglas J. Lerose, J.) found the detective’s testimony to be credible. The court determined that the photo array identification was neither tainted nor unreliable. Moreover, defendant had provided his statement to the detective “voluntarily after he was given the proper warnings.” Finally, the court found “that there was probable cause for the arrest.” Thus, the branches of the motion seeking to suppress defendant’s statement and the victim’s identification testimony were denied.At a pretrial Sandoval hearing, the People requested that defendant, if he chose to testify, be questioned during cross-examination regarding three February 9, 1993 convictions, of criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree, both class B felonies, and criminal possession of a controlled substance in the fifth degree, a class D felony. The People also requested that they be permitted to inquire regarding a September 18, 1987 conviction of attempted rape in the first degree, a class C felony. The People argued that “although the defendant’s convictions are not necessarily acts that involve dishonesty, however they are indicative of [his] willingness or disposition to voluntarily place advancement of his individual self-interest ahead of the interests of society, and, thus, may be relevant to suggest his readiness to do the same on the witness stand.” Moreover, the probative value of the convictions was not diminished by the fact that they were at least 20 years old. Defendant opposed the application, noting that the convictions were 22 years and 27 years old, respectively, and were extremely prejudicial. The 1993 drug convictions did not “involve deceit, dishonesty or fraud,” and were thus “not relevant to a person’s credibility or veracity to tell the truth.” The 1987 attempted rape conviction would serve only “to inflame the jury” and to show defendant’s propensity to commit similar crimes. The court (Martin J. Massell, J.) excluded the 1993 convictions, but permitted the prosecutor to inquire about the 1987 conviction to the extent of whether defendant was “convicted of a crime, what crime and when.”During jury selection, the prosecutor asked if any of the prospective jurors had “any moral, religious or philosophical” impediment preventing them from finding defendant guilty if the prosecutor proved defendant guilty beyond a reasonable doubt. One prospective juror replied that he had a daughter, which might make a difference. He did not “want to see anybody stuck,” so he did not know if that would make a difference. The prosecutor then asked if he could “separate your daughter from what happened in this case?” The prospective juror replied, “I guess I could.” The prosecutor asked if he could be fair and impartial, to which the prospective juror replied, “[y]es.” During questioning by defendant’s counsel, the prospective juror indicated that he had daughters, and that he would be thinking about that as he heard the evidence and keeping it in the back of his mind. When asked if he “can’t promise…that that’s not going to play on your decision when you sit back in the jury room,” he replied that it “[d]epends on the evidence.” When counsel stated, “[i]t depends, but you can’t promise me,” the prospective juror responded, “[n]o.” Defendant’s counsel challenged the prospective juror for cause. The People opposed the challenge. The District Court (Martin J. Massell, J.) denied the challenge for cause, and defendant exercised a peremptory challenge. Defendant subsequently exhausted his peremptory challenges.At the trial, the victim testified in accordance with her account in the supporting deposition. In addition, she testified that, in July 2012, she was walking home, texting on her cell phone, when she saw an “[o]lder guy with a beard and glasses,” wearing a dark-colored baseball hat and driving a gray SUV, stopped at a light. The man was staring at her. When she was about a mile from her house, she saw the man, about 10 feet away from her, standing next to a bush. He whispered to her, saying “psst,” and then called to her to “come here,” to come with him. He was giving her a “creepy look.” He told her that he had seen her walking. She was scared and walked faster. She thought that he could have “snatched” her up and taken her with him. The man then walked to his car, and she arrived home about 10 minutes later.The victim further testified that, at approximately 5:00 p.m. on October 22, 2012, defendant pulled up to the McDonald’s drive-thru window in a gray SUV. The victim took his food order. She did not recognize defendant at first, but after defendant started talking to her, she remembered who he was. He had the same beard and glasses, and was wearing the same hat. Defendant told her how beautiful she was, that she was “a dream of his, a fantasy of his.” She became scared when she realized that the man was the same person who had accosted her when she had been walking home in July. No customer had ever spoken to her in that manner. Another customer gave a piece of paper to a coworker on which was written the license plate number of the vehicle driven by defendant. The victim changed her name at work in case defendant came back again, and stopped walking home from work. On December 28, 2012, the victim was working at the McDonald’s as a “runner,” a person working at the second drive-thru window who gets the food after it was purchased. Her coworker was working at the first window. At about 8:00 p.m., she brought food to her coworker for an order, when she saw defendant. She backed up because she did not want defendant to see her. She became scared again because this was the third time that she had seen him.The detective testified in a similar manner as he did at the suppression hearing.The victim’s coworker testified in accordance with his supporting deposition with respect to his interaction with defendant at the McDonald’s drive-thru window at about 8:00 p.m. on December 28, 2012. He further testified that defendant had been looking at the victim while defendant had spoken to the coworker. He indicated that his interaction with customers are timed, and he was trying to “hurry it up” because the line was “getting long.” Defendant had been at the window between two and four minutes, which was longer than a customer should be there. After defendant left, the coworker spoke to the victim. She was startled, scared, and nervous.Defendant’s motion to dismiss the stalking charge on the ground that the People failed to establish the elements of that crime was denied. Defendant did not call any witnesses or otherwise present any evidence. The jury found defendant guilty of stalking in the fourth degree. On March 18, 2015, the District Court sentenced defendant to a term of 30 days of incarceration and one year of probation. The court also imposed a $175 mandatory surcharge, a $25 crime victim assistance fee, and a $50 DNA fee, and issued a stay-away order of protection against defendant and in favor of the victim.On appeal, defendant contends, among other things, that the information was jurisdictionally defective, that the evidence was legally insufficient to support his conviction, and that the verdict of guilt was against the weight of the evidence. Defendant also argues that the arrest was not based on probable cause, that the District Court erred in permitting the detective to testify regarding the circumstances of defendant’s arrest, that the photo array was impermissibly suggestive, that the court erred in its Sandoval ruling, and that the court erred in denying defendant’s challenge for cause of the prospective juror who had a daughter.A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution (see People v. Dreyden, 15 NY3d 100, 103 [2010]). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant’s commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v. Henderson, 92 NY2d 677, 679 [1999]; People v. Alejandro, 70 NY2d 133, 136-137 [1987]; People v. Westwood, 53 Misc 3d 74, 77 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).The facts alleged in the information in support of the charge of stalking in the fourth degree were legally sufficient, in that they established that defendant, “intentionally, and for no legitimate purpose, engage[d] in a course of conduct directed at a specific person and [knew] or reasonably should [have] know[n] that such conduct…[was] likely to cause reasonable fear of material harm to the physical health, safety or property” of the victim (Penal Law §120.45 [1]). The Court of Appeals has held that there is no need for proof that the accused intended “a specific result, such as fear or harm” (People v. Stuart, 100 NY2d 412, 426 [2003]), or proof of the “subjective fear or sensibilities of the alleged victim” (id. at 428). An element of the offense is that the defendant intentionally engaged in a “course of conduct,” which, while not defined in the Penal Law, has been construed to mean “a pattern of conduct composed of a series of acts over a period of time…evidencing a continuity of purpose” (People v. Payton, 161 Misc 2d 170, 174 [Crim Ct, Kings County 1994], quoted with approval in People v. Ubbink, 120 AD3d 1574, 1575-1576 [2014]). Further, the conduct must be viewed as a whole and not evaluated as a separate act in each occurrence (see People v. Westwood, 53 Misc 3d at 79; People v. Brandel, 30 Misc 3d 134[A], 2011 NY Slip Op 50082[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; People v. Tralli, 88 Misc 2d 117, 118 [App Term, 2d Dept, 9th & 10th Jud Dists 1976]). In the stalking context, “continuity of purpose” is not the intent to cause a particular fear of harm but to commit acts which create a reasonable likelihood of fear of harm.Here, the information, supplemented by the supporting depositions, sufficiently alleged that defendant engaged in a course of conduct that created a reasonable likelihood of fear of harm. Contrary to defendant’s contention that the alleged incidents were brief, distinct and isolated, remote in time, and remarkably different from each other, the three alleged incidents occurred within a five-month period. The fact that the alleged incidents lasted only a few minutes each is not a ground for dismissal. The alleged incidents represented a series of intentional acts united in a continuity of purpose that established a course of conduct directed at the victim with no legitimate purpose. Defendant should have at least reasonably known that these incidents were likely to cause reasonable fear of material harm to the victim’s physical health or safety.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 defendant’s guilt of stalking in the fourth degree beyond a reasonable doubt. The testimony of the victim and her coworker, which essentially dovetailed their supporting depositions, established the elements of stalking in the fourth degree.In conducting an independent review of the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007]), great deference is accorded to the jury’s opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Mateo, 2 NY3d 383 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]). The reviewing court must determine, based on the credible evidence, whether a different result would have been unreasonable (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Mateo, 2 NY3d 383 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record, we find that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633 [2006]). In July 2012, a 50-year-old man essentially hiding in the bushes came out, whispered at a 17-year-old girl and asked her to come with him. Three months later, defendant, who knew that the victim worked at a McDonald’s, came to her drive-thru window and, in addition to ordering food, told her that she was beautiful and that she was his fantasy. Finally, two months after the October incident, while the victim was present, defendant engaged in a lengthy and vulgar discussion with the victim’s male coworker, encouraging him to have sex with the victim. The coworker testified that defendant lingered at the window for several minutes, longer than most customers stay at the window to pick up food.Defendant’s arrest was predicated on probable cause. The police learned, after having been provided with the license plate number of the vehicle driven by the perpetrator at the McDonald’s on October 22, 2012, that the vehicle was a Honda Pilot, which was parked at a specified address in Uniondale. Furthermore, upon observing the video provided by the manager of the McDonald’s, the police determined that the person in the video driving the Honda Pilot matched the description of the perpetrator provided by the victim. On January 21, 2013, the police observed a man, who matched the description of the perpetrator, leave the home located at the address in Uniondale. It is undisputed that the man who left the address was defendant.We reject defendant’s contention that the photo array was unduly suggestive. After defendant’s identity became known, the detective obtained his DMV photograph, prepared a photo array, and, upon showing the array to the victim, almost immediately obtained a positive identification of defendant as the perpetrator of the crime of stalking in the fourth degree. The photo array consisted of six black males, all of whom appear to be at least 40 years old, with short dark hair and facial hair. While the backgrounds of the photographs appear to be different, the array was not unduly suggestive (see People v. Burroughs, 98 AD3d 583 [2012]). There was no substantial likelihood that defendant would be singled out for identification (see People v. Chipp, 75 NY2d 327, 336 [1990]). “There is no requirement that the photograph of a defendant shown as part of a photo array be surrounded by photographs of individuals nearly identical in appearance” (People v. Starks, 91 AD3d 975, 975 [2012]).Nevertheless, the judgment must be reversed and a new trial ordered because of an improper Sandoval ruling and the court’s improper denial of a challenge for cause of a prospective juror.The court erred in permitting the prosecutor, in the event defendant chose to testify, to ask defendant whether he had been “convicted of a crime, what crime and when,” which would have elicited the response that he was convicted in 1987 of attempted rape in the first degree. Although “questioning concerning other crimes is not automatically precluded simply because the crimes to be inquired about are similar to the crimes charged” (People v. Pavao, 59 NY2d 282, 292 [1983]; see People v. Hayes, 97 NY2d 203, 208 [2002]; People v. Walker, 83 NY2d 455, 459 [1994]), “cross-examination with respect to crimes or conduct similar to that of which the defendant is presently charged may be highly prejudicial, in view of the risk, despite the most clear and forceful limiting instructions to the contrary, that the evidence will be taken as some proof of the commission of the crime charged rather than be reserved solely to the issue of credibility” (People v. Sandoval, 34 NY2d 371, 377 [1974]; see People v. Calderon, 146 AD3d 967, 968-972 [2017]; People v. Brothers, 95 AD3d 1227, 1228-1229 [2012]). Under the circumstances of this case, including the fact that the conviction was 27 years old and involved a crime committed against a female victim, we find that the court’s decision to permit the prosecutor to elicit the fact that defendant had been convicted of attempted rape was unduly prejudicial (see People v. Brothers, 95 AD3d at 1229; see also Jerome Prince, Richardson on Evidence §6-410 [Farrell 11th ed 1995]).“A challenge for cause to a prospective juror may be made on the ground that the juror has a state of mind that is likely to preclude him or her from rendering an impartial verdict” (see CPL 270.20 [1] [b]). When a prospective juror reveals knowledge or opinions reflecting a likelihood of bias, the juror must expressly state in unequivocal terms that his or her prior state of mind will not influence his or her verdict, and must also state that he or she will render an impartial verdict based solely on the evidence. Where a prospective juror offers such assurances, the trial court has discretion to deny the challenge for cause if it determines that the juror’s promise to be impartial is credible (see People v. Johnson, 40 AD3d 1011, 1011-1012 [2007]; People v. Ortiz, 37 AD3d 361, 362 [2007]). If a prospective juror makes statements that “cast serious doubt on” his or her “ability to render an impartial verdict” (People v. Arnold, 96 NY2d 358, 363 [2001]), that prospective juror must be excused for cause unless he or she provides “an unequivocal assurance that” he or she “can set aside any bias and render an impartial verdict based on the evidence” (People v. Johnson, 94 NY2d 600, 614 [2000]; see People v. Lewis, 71 AD2d 1582, 1583 [2010]). An additional question or two at voir dire could have dispelled any doubt as to equivocation and assured an impartial jury (see People v. Chambers, 97 NY2d 417, 419 [2002]). It is the trial court’s obligation, not the defense counsel’s, to require that a prospective juror expressly state that his or her state of mind will not influence his or her verdict, and that he or she will render an impartial verdict on the evidence (see People v. Torpey, 63 NY2d 361, 367 [1984]; People v. Biondo, 41 NY2d 483, 485 [1977]; People v. Thigpen, 277 AD2d 261, 261-262 [2000]).Here, the prospective juror replied that he had a daughter. He did not “want to see anybody stuck,” so he did not know if that would make a difference. The trial court did nothing to inquire whether the prospective juror could keep an open mind, and the prospective juror’s final statement was that he could not promise that he would not think about his daughter when considering the evidence. Thus, the prospective juror never provided an unequivocal assurance that he could be fair and impartial. Consequently, the court erred in denying defendant’s challenge for cause of that prospective juror.In view of the foregoing, the matter must be remitted for a new trial. While defendant has already served his sentence, dismissal in the interest of justice is not warranted in this case in which a serious crime has been charged (see People v. Allen, 39 NY2d 916, 918 [1976]; People v. Gavrilov, 49 Misc 3d 138[A], 2015 NY Slip Op 51562[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).In light of our determination, we need not reach defendant’s remaining contentions.Accordingly, the judgment of conviction is reversed and the matter is remitted to the District Court for a new trial.MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.November 30, 2017Andrew E. MacAskill, Esq., for appellant.Nassau County District Attorney (Daniel Bresnahan, W. Thomas Hughes of counsel), for respondent.2015-1005 N CR. THE PEOPLE v. JOSEPH, DEBORAH — Appeal from a judgment of the District Court of Nassau County, First District (Joseph B. Girardi, J.), rendered May 8, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of a forged instrument in the third degree and attempted petit larceny.ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of criminal possession of a forged instrument in the third degree and vacating the sentence imposed thereon, and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.Defendant was charged with criminal possession of a forged instrument in the third degree (Penal Law §170.20) and attempted petit larceny (Penal Law §§110.00, 155.25). The accusatory instrument alleges that, on May 1, 2013, in Garden City, Nassau County, defendant attempted to deposit a fraudulently obtained check in the amount of $23,500 issued by M&T Bank.At a jury trial, an employee of the Garden City branch of M&T Bank testified that, in April 2013, defendant contacted the bank and asked about cashing a check in the amount of $23,500. Upon the bank employee’s request, defendant faxed the employee a copy of the check, which indicated that the check was issued by a branch of M&T Bank located in Maryland, and that the check was a bank check or cashier’s check bearing no information regarding the underlying account from which the money used to fund the issuance of the check had been withdrawn. The bank employee then contacted the Maryland branch, inquiring whether that branch had issued a bank check payable to defendant in the amount of $23,500. The Maryland branch confirmed that it had issued the check and that the check was valid. Thereafter, the bank employee called defendant and asked defendant why she was being paid $23,500. Defendant responded that she was being paid for some spices that she had made for a customer. The bank employee then asked for the customer’s name, to which defendant responded that she did not know and would have to call back. Approximately three days later, defendant sent the bank employee a fax, providing, among other things, the name of the alleged customer, the name of the bank that issued the check and the title of the underlying account from which the money used to fund the issuance of the check had been withdrawn, which was Steelhouse, LLC. When the bank employee later contacted the Maryland branch to obtain a written approval for cashing the check, the Maryland branch informed the employee that “there [was] something going on with the [subject] account” and asked her to “hold onto” the check. The bank employee thereafter called defendant, informing her that the bank check could not be cashed but that defendant could come to the Garden City branch, open an account, deposit the check into the account and withdraw the funds later. The following day, on May 1, 2013, defendant went to the Garden City branch with the check and asked to see the bank employee. The bank employee asked her manager to call 911, then sat down with defendant and told defendant that they would open an account for defendant. Defendant handed the bank employee the check and her driver’s license. As the bank employee was establishing the profile for defendant’s account, the police arrived and arrested defendant. Upon cross-examination, the bank employee confirmed that the check in question was issued by M&T Bank and bore the requisite signatures of bank employees, and acknowledged that the check had never been endorsed by defendant.The police officer who arrested defendant testified that, upon arriving at the Garden City branch, he saw defendant sitting at the bank employee’s desk and that he ultimately retrieved the check from the crime scene.The owner of Steelhouse, LLC testified that Steelhouse, LLC was a construction company in Maryland and that she lived in Maryland and held an account in the name of Steelhouse, LLC at the Maryland branch of M&T Bank. The owner of Steelhouse, LLC further testified that, in April 2013, she noticed that at least $23,500 had been transferred out of the company’s account without her knowledge or consent. The owner was thereafter shown by the bank’s employees several emails ostensibly sent by her requesting the bank to issue a check in the amount of $23,500 using the funds in her company’s account. The owner testified that she had never sent or seen those emails and had never made such request. The owner also testified that she had never seen or done business with defendant and that there was no reason for any funds to be transferred out of the company’s account to defendant.Following the trial, defendant was convicted of both charges. The District Court sentenced defendant to 30 days in prison followed by three years of probation on each conviction, to run concurrently with each other, and imposed a mandatory surcharge of $175 and a $25 crime victim’s assistance fee on each conviction.Defendant first contends that her conviction of criminal possession of a forged instrument in the third degree was not supported by legally sufficient evidence, claiming, among other things, that the People failed to prove that the bank check is a forged instrument within the meaning of Penal Law §170.20. We agree.1“A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he [or she] utters or possesses a forged instrument” (Penal Law §170.20). A forged instrument is “a written instrument which has been falsely made, completed or altered” (Penal Law §170.00 [7]). “A person ‘falsely makes’ a written instrument when he [or she] makes or draws a complete written instrument…, which purports to be an authentic creation of its ostensible maker or drawer, but which is not such either because the ostensible maker or drawer is fictitious or because, if real, he [or she] did not authorize the making or drawing thereof” (Penal Law §170.00 [4]; see People v. Ippolito, 20 NY3d 615, 620-621 [2013]; People v. Cunningham, 2 NY3d 593, 596-597 [2004]). “[T]he ostensible drawer is the person who, from the face of the instrument, would appear to be its drawer” (People v. Levitan, 49 NY2d 87, 92 [1980]; see People v. Briggins, 50 NY2d 302, 307 [1980]).Here, inasmuch as the bank check at issue bears only the name and address of M&T Bank, the bank is the ostensible drawer of the check (see People v. Briggins, 50 NY2d at 307; People v. Levitan, 49 NY2d at 92; see also Golden v. Citibank, N.A., 23 NY3d 935, 936 [2014]; Dziurak v. Chase Manhattan Bank, N. A., 44 NY2d 776, 777 [1978]). Further, the placement of the signatures of two M&T Bank employees rendered the bank the actual drawer of the check (see People v. Zeller, 122 AD3d 1081, 1082-1083 [2014]). Since the crime of forgery essentially “involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer” (People v. Levitan, 49 NY2d at 90), there is no forgery where, as here, “the ostensible drawer and the actual drawer are in fact one and the same person” (id. at 91; see People v. Cunningham, 2 NY3d at 597; People v. Morehouse, 109 AD3d 1022, 1023 [2013]).The People argue that the ostensible drawer of the check should be deemed to be not M&T Bank, but the owner of the underlying account from which the money used to fund the bank check had been withdrawn. Contrary to the People’s argument, the owner of the underlying account should not be deemed to be the ostensible drawer of the check, as nowhere on the check did the owner’s name or any information relating to the underlying account appear (see People v. Levitan, 49 NY2d at 92 ["The flaw in this argument, quite simply, is that it confuses the ostensible drawer (of a deed) with the person who could create a valid deed"]). Given that the ostensible drawer and the actual drawer of the check is M&T Bank, the check is not a forged instrument under the statute (see People v. Cunningham, 2 NY3d at 597; People v. Asai, 66 AD3d 1138, 1140 [2009]). While the check was fraudulently obtained, it was the authentic creation of M&T Bank by its designated agents, who have general authority to issue bank checks (see People v. Asaro, 94 NY2d 792, 793 [1999]; People v. Asai, 66 AD3d at 1139-1140; People v. Seavey, 305 AD2d 937, 938 [2003]; People v. Adkins, 236 AD2d 850, 850 [1997]). Therefore, even viewing the evidence in the light most favorable to the People, there is no valid line of reasoning and permissible inferences from which a rational jury could have concluded that the proof was sufficient to support defendant’s conviction of criminal possession of a forged instrument in the third degree (see People v. Asai, 66 AD3d at 1140; see generally People v. Bleakley, 69 NY2d 490, 495 [1987]). Consequently, defendant’s conviction of that count and the sentence imposed thereon must be vacated.However, we are not persuaded by defendant’s contention that, because the evidence adduced at trial failed to establish that she had come dangerously near to completing the crime of petit larceny, the evidence is legally insufficient to support her conviction of attempted petit larceny. “A person is guilty of petit larceny when he [or she] steals property” (Penal Law §155.25). “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime” (Penal Law §110.00). “In order to constitute an attempt, the defendant’s conduct must have passed the stage of mere intent or mere preparation to commit a crime. In other words, the defendant must have engaged in conduct that came dangerously near commission of the completed crime” (People v. Naradzay, 11 NY3d 460, 466 [2008] [internal quotation marks and citations omitted]; accord People v. Carpenter, 138 AD3d 1130, 1132 [2016]; see People v. Denson, 26 NY3d 179, 189 [2015]; People v. Acosta, 80 NY2d 665, 670 [1993]; People v. Pannizzo, 130 AD3d 467, 468 [2015]). Furthermore, it is well settled that the “dangerously near” standard “does not…mandate that the defendant take the final step necessary to complete the offense” (People v. Naradzay, 11 NY3d at 466 [internal quotation marks and citation omitted]; see People v. Denson, 26 NY3d at 189; People v. Mahboubian, 74 NY2d 174, 190 [1989]; People v. Bracey, 41 NY2d 296, 300 [1977]). The determination of whether a defendant has crossed the “the boundary where preparation ripens into punishable conduct depends greatly on the facts of the particular case” (People v. Mahboubian, 74 NY2d at 190; see People v. Naradzay, 11 NY3d at 467).Here, defendant’s conduct of attempting to open an account with M&T Bank to deposit the bank check amounted to conduct which “carr[ied] the project forward within dangerous proximity to the criminal end to be attained” (People v. Bracey, 41 NY2d at 300 [internal quotation marks and citation omitted]), namely, to steal the funds (see People v. Swift, 278 AD2d 110, 111 [2000]). The fact that defendant had not yet endorsed the check—the final step necessary to obtain the funds—does not mean that the steps she had already taken could not constitute an attempt to steal the money (see People v. Denson, 26 NY3d at 189; People v. Naradzay, 11 NY3d at 466; People v. Mahboubian, 74 NY2d at 190). Notably, defendant’s activities “had gone to the extent of placing it in [her] power to commit the offense unless interrupted” (People v. Mahboubian, 74 NY2d at 191 [internal quotation marks and citation omitted]). Although it was not impossible that, had the police not intervened, defendant might have changed her mind and abandoned her attempt to gain access to the funds, “the theoretical possibility that defendant[] might yet have renounced the criminal venture does not obviate [her] liability for an attempt, for that is true of any attempt interrupted by the police” (id. at 190). Therefore, viewing the evidence in the light most favorable to the People, we find that the evidence is legally sufficient to support defendant’s conviction of attempted petit larceny (see generally People v. Bleakley, 69 NY2d at 495).Defendant’s contention that she was denied a fair trial due to the District Court’s excessive questioning of witnesses is unpreserved, as defendant did not object to any of the court’s interventions that she now complains of (see CPL 470.05 [2]; People v. Charleston, 56 NY2d 886, 887-888 [1982]; People v. Ojeda, 118 AD3d 919, 919 [2014]; compare People v. Robinson, 151 AD3d 758, 758 [2017]). In any event, defendant’s contention is without merit. The constitutional command to afford a fair trial does not “inhibit a [t]rial [j]udge from assuming an active role in the resolution of the truth” (People v. De Jesus, 42 NY2d 519, 523 [1977]; see People v. Yut Wai Tom, 53 NY2d 44, 56 [1981]). “[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of the trial, and, if necessary, to develop factual information” (People v. Adams, 117 AD3d 104, 109 [2014] [internal quotation marks and citation omitted]; see People v. Yut Wai Tom, 53 NY2d at 56-57; People v. De Jesus, 42 NY2d at 523; People v. Mendes, 3 NY2d 120, 121 [1957]). “Th[is] power must, of course, be exercised sparingly, without partiality, bias or hostility” (People v. Storfs, 47 NY2d 882, 883 [1979] [citations omitted]; see People v. Arnold, 98 NY2d 63, 67-68 [2002]; People v. Moulton, 43 NY2d 944, 945-946 [1978]; People v. Robinson, 136 AD3d 1064, 1065 [2016]), and the trial judge must be guided by the overarching principle that his or her role is “to protect the record at trial, not to make it” (People v. Arnold, 98 NY2d at 67; see People v. Towns, 151 AD3d 1638, 1639 [2017]; People v. Robinson, 151 AD3d at 759). In this regard, it is the “substance and not the number of questions asked [that] is the important consideration” (People v. Yut Wai Tom, 53 NY2d at 58; see People v. Arnold, 98 NY2d at 67; People v. Melendez, 31 AD3d 186, 196 [2006]), and “the line is crossed when the judge takes on either the function or appearance of an advocate at trial” (People v. Arnold, 98 NY2d at 67; see People v. Yut Wai Tom, 53 NY2d at 55-56). Finally, “[e]ven if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is ‘not prevented from arriving at an impartial judgment on the merits’ ” (People v. Adams, 117 AD3d at 109, quoting People v. Moulton, 43 NY2d at 946; see People v. Gonzalez, 38 NY2d 208, 210-211 [1975]; People v. Melendez, 31 AD3d at 197).Here, the record demonstrates that most of the court’s interjections were properly aimed at clarifying the testimony and eliciting relevant facts (see People v. Adams, 117 AD3d at 109; People v. Nurse, 8 AD3d 301, 301 [2004]; People v. Wanton, 256 AD2d 125, 126 [1998]; People v. Washington, 219 AD2d 502, 503 [1995]). Although one of the court’s interventions was inappropriate, it was not so egregious as to affect the jury’s judgment on defendant’s culpability (see People v. Moulton, 43 NY2d at 946; People v. Baxter, 108 AD3d 1158, 1159-1160 [2013]; People v. Rios-Davilla, 64 AD3d 482, 483 [2009]; compare People v. Arnold, 98 NY2d at 68-69; People v. Robinson, 151 AD3d at 759-761). Furthermore, the record, as a whole, does not show that the District Court took on either the function or appearance of an advocate, conveyed to the jury that the court had any personal opinion on the merits or displayed any bias towards defendant (see People v. Ojeda, 118 AD3d at 919; People v. Galloza, 270 AD2d 69, 70 [2000]). In addition, the court mitigated any potential prejudice flowing from the complained-of conduct by instructing the jury not to draw any inference from the court’s remarks or assign special weight to the testimony elicited by the court, and there was overwhelming evidence of defendant’s guilt (see People v. Adams, 117 AD3d at 111; People v. Whitecloud, 110 AD3d 626, 627 [2013]; People v. Gonzalez, 251 AD2d 51, 52-53 [1998]). Under these circumstances, defendant was not deprived of a fair trial.Finally, we find no merit to defendant’s contention that her sentence of 30 days in prison was excessive and should be reduced to time served. It is well established that a sentence that falls within the permissible statutory range will not be disturbed unless there is a clear showing that the sentencing court abused its discretion or that extraordinary circumstances exist warranting a modification (see People v. Ramos, 133 AD3d 904, 908 [2015]; People v. Silva, 39 Misc 3d 149[A], 2013 NY Slip Op 50949[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; People v. Everle, 37 Misc 3d 58, 60 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; People v. Giglione, 34 Misc 3d 72, 75 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Here, defendant’s sentence fell within the permissible statutory range (see Penal Law §70.15 [1]). While the People and the presentence report recommended no jail time, the imposition of sentence is solely the responsibility of the sentencing court, which is free to reject the recommended sentence as inadequate (see People v. Farrar, 52 NY2d 302, 305 [1981]; People v. Arogundy, 112 AD2d 1003, 1004 [1985]; People v. Robert W, 47 AD2d 793, 793 [1975]). In sentencing defendant, the District Court properly considered the gravity and nature of defendant’s crime and her lack of remorse (see People v. Mohawk, 142 AD3d 1370, 1371 [2016]; People v. Seymore, 106 AD3d 1033, 1034 [2013]; People v. Garcia, 46 AD3d 573, 574 [2007]), as well as the purpose of the penal sanction to protect the public (see People v. Farrar, 52 NY2d at 305; People v. Howard, 61 AD3d 993, 995 [2009]). The court also properly considered the fact that defendant attempted to communicate with the jury during the People’s summation by repeatedly shaking her head, despite the court’s warning not to do so (see generally People v. Walker, 53 AD3d 672, 673 [2008]; People v. Kane, 6 AD3d 986, 987 [2004]). To the extent defendant argues that the sentence imposed improperly penalized her for exercising her constitutional right to remain silent, defendant’s argument lacks merit, as the record reveals no retaliation or vindictiveness by the District Court against defendant for remaining silent (see People v. Clark, 129 AD3d 1, 26 [2015]; see also People v. Mitchell, 129 AD3d 1319, 1321 [2015]). In view of the foregoing, defendant failed to show the existence of extraordinary circumstances or any abuse of discretion by the District Court warranting a reduction of the sentence in the interest of justice (see People v. Crockett, 30 AD3d 768, 771 [2006]; compare People v. Peters, 277 AD2d 512, 515 [2000]; People v. Smith, 222 AD2d 738, 738 [1995]; People v. Jiminez, 82 AD2d 996, 996-997 [1981]).Accordingly, the judgment of conviction is modified by vacating the conviction of criminal possession of a forged instrument in the third degree and the sentence imposed thereon, and dismissing that count of the accusatory instrument.MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.November 30, 2017
