| People v Perkins |
| 2008 NY Slip Op 09112 [56 AD3d 944] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v OmarPerkins, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered January 26, 2006, upon a verdict convicting defendant of the crimes of robbery in thesecond degree (two counts), burglary in the second degree (two counts), criminal use of a firearmin the second degree and resisting arrest.
Two men wearing masks and wielding a handgun pushed their way into an apartment, tied upthe two female occupants, threatened to kill them, demanded money at gunpoint and ransackedthe apartment. Finding no money and taking a red cellular phone from one of the victims, themen left the apartment, only to be immediately surrounded by police. One of the men, lateridentified as Rory Pinto, was quickly taken into custody. The other man fled and, while beingpursued by police, he was observed throwing away a gun and other items. The police chased andcaught him, he was identified as defendant and he had in his possession a red cellular phone ofthe same brand and type as that taken from the victims. Shortly after defendant's arrest, one of thevictims identified the phone found in his possession as hers. She also insisted that the phone bereturned to her because it was the only way that she could communicate with her young son whowas staying with her mother in a distant city. The police photographed the phone and released itto her. As a result, the phone was not available for later examination by the defense or use attrial.[*2]
At the joint trial of defendant and Pinto, County Courtdismissed three charges against defendant and ultimately found him guilty of the remainingcharges.[FN*] Defendant was then sentenced to two concurrent prison terms of 14 years for the two counts ofburglary in the second degree, as well as five years of postrelease supervision, a concurrent14-year prison term for criminal use of a firearm in the second degree and two prison terms of 14years with five years of postrelease supervision for the two counts of robbery in the seconddegree, with one such term to run concurrently and the other to run consecutively with the termsfor burglary. Finally, defendant also received a concurrent one-year term for the conviction ofresisting arrest. Defendant now appeals.
We turn first to defendant's contention that County Court abused its discretion by imposingan insufficient sanction for the People's violation of Penal Law § 450.10 in releasing thecellular phone to one of the victims. When allegedly stolen property is in the custody of thepolice or a district attorney and is released before both the People and defense counsel have hadan opportunity to examine, test and otherwise make use of it, Penal Law § 450.10 (10)mandates the imposition of a sanction (see People v Kelly, 62 NY2d 516, 520-521[1984]). The choice of sanction, however, is "committed to the sound discretion of the trialcourt" and may take into account "the degree of prosecutorial fault . . . , but theoverriding concern must be to eliminate any prejudice to the defendant while protecting theinterests of society" (id. at 520-521). Here, the sanction imposed was a jury instructionthat the People's failure to comply with the statute was a factor that the jurors could consider indetermining the weight to be given to such evidence (see Penal Law § 450.10[10]), there was no evidence of bad faith and defendant's counsel was able to point out that noforensic testing had been conducted on the phone. Accordingly, we are unwilling to say thatCounty Court abused its discretion (seePeople v Reyes, 27 AD3d 584, 584 [2006], lv denied 7 NY3d 761 [2006]).
Defendant also contends that his conviction on the two robbery counts was against theweight of the evidence because there could be no motive for stealing a cellular phone whichwould be rendered useless when the owner canceled its service. Suffice it to say that the motivefor removal of the phone from the victim may well have been to prevent her from immediatelycontacting the police. After viewing the evidence in a neutral light and giving "appropriatedeference to the jury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]), we conclude that the verdict was inaccord with the weight of the evidence.
We further find no merit in defendant's argument that the imposition of consecutivesentences was illegal. County Court properly imposed consecutive sentences upon defendantbecause the crimes of robbery in the second degree and burglary in the second degree are distinctand arose from the separate acts of the forcible taking of the victim's cellular phone and enteringthe victim's home with the intent to commit a crime (see People v Yong Yun Lee, 92NY2d 987, 988-989 [1998]). Nor is the 28-year aggregate sentence harsh and excessive here,given the violent and terrifying nature of the crimes committed, the fact that defendant instigatedthis home invasion, and his lack of remorse. We perceive neither an abuse of discretion nor theexistence [*3]of any extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Morgan, 24 AD3d 950, 954 [2005], lv denied6 NY3d 815 [2006]; People vJackson, 2 AD3d 893, 897 [2003], lv denied 1 NY3d 629 [2004]; People vTorra, 309 AD2d 1074, 1076 [2003], lv denied 1 NY3d 581 [2003]).
Defendant's remaining contentions raised in his supplemental pro se brief have beenreviewed and found to be without merit.
Cardona, P.J., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The jury found Pinto guilty ofburglary in the second degree (two counts), robbery in the second degree (two counts) andcriminal use of a firearm in the second degree (People v Pinto, 56 AD3d 956 [2008][decided herewith]).