| People v Lakatosz |
| 2009 NY Slip Op 01255 [59 AD3d 813] |
| February 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MariaLakatosz, Also Known as Maria Lakatos, Also Known as Maria Kwiek, Also Known as MariaLakatur, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Steven C. Wu of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Madison County (DiStefano,J.), rendered March 13, 2003, upon a verdict convicting defendant of the crimes of burglary inthe second degree (two counts) and petit larceny (two counts).
Defendant was charged by indictment with two counts each of burglary in the second degreeand petit larceny in connection with separate criminal transactions that occurred in MadisonCounty in March and October 2001. In each, defendant was charged with purposely distractingelderly homeowners while accomplices stole money and property from their residences. After ajury trial, defendant was found guilty as charged and was sentenced to consecutive 15-yearprison terms for each burglary conviction, as well as concurrent one-year sentences for each petitlarceny conviction. Defendant now appeals.
Defendant contends that County Court erred in conducting in her absence many of theproceedings that culminated in her conviction, including the pretrial hearings, the trial and theimposition of her sentence. For there to be a valid waiver of a defendant's right to be present[*2]while proceedings in a criminal prosecution are beingconducted, it must be shown that the defendant was informed not only of the right to be presentat the proceedings, but also of the consequences for failing to appear, including the fact that theproceedings will proceed in his or her absence (see People v Parker, 57 NY2d 136, 141[1982]; People v Stroman, 6 AD3d818, 819 [2004], lv denied 3 NY3d 648 [2004]; People v Diotte, 305 AD2d721, 722 [2003], lv denied 100 NY2d 580 [2003]; see also People v Severino, 44 AD3d 1077, 1078 [2007], lvdenied 9 NY3d 1038 [2008]).
Here, on three separate occasions, County Court clearly and unequivocally informeddefendant of her right to be present and warned her that, if she failed to appear in court whenrequired, all proceedings, including the trial and, if appropriate, the imposition of sentence,would be conducted in her absence. When defendant failed to appear as pretrial proceedingswere about to begin, the court questioned defense counsel about defendant's whereabouts andissued a warrant for her arrest. We note that counsel acknowledged being in contact withdefendant, as well as members of her family, up until the time she absconded, but represented tothe court not only that he could not account for his client's absence, but at the time was unable tolocate her. Before proceeding in defendant's absence, County Court considered the likelihoodthat she would be located, the impact on all involved by delaying the proceedings and, inparticular, the advanced age of some of the witnesses who would be called to testify (seePeople v Parker, 57 NY2d at 142; People v Stroman, 6 AD3d at 819; People vThompson, 306 AD2d 758, 760 [2003], lv denied 1 NY3d 581 [2003]; People vColon, 180 AD2d 876, 877 [1992], lv denied 80 NY2d 829 [1992]).[FN*]
We also find no merit in defendant's contention that County Court erred in not granting hermotion to sever counts one and two from counts three and four of the amended indictment. Asthese counts involved the same statutory provisions, albeit different criminal undertakings(see CPL 200.20 [2] [c]; Peoplev Hunt, 39 AD3d 961, 962 [2007], lv denied 9 NY3d 845 [2007]; People vHalm, 180 AD2d 841, 843 [1992], affd 81 NY2d 819 [1993]), the decision to grant aseverance is committed to the sound discretion of the trial court (see People vMahboubian, 74 NY2d 174, 183 [1989]; People v Nickel, 14 AD3d 869, 870 [2005], lv denied 4NY3d 834 [2005]). At trial, the victims of each burglary described in detail their contact withdefendant and how each crime was committed. In addition, County Court gave appropriateinstructions to the jury that clearly and succinctly distinguished between the charges and how theevidence introduced on each was to be properly employed by the jury in its deliberations (seePeople v Hunt, 39 AD3d at 962; People v Halm, 180 AD2d at 843; see alsoPeople v Cannon, 306 AD2d 130, 130-131 [2003], lv denied 1 NY3d 539 [2003]).As such, the evidence as to each burglary was "separately presented, uncomplicated and easilydistinguishable" (People v Kelly, 270 AD2d 511, 512 [2000], lv denied 95 NY2d854 [2000]; accord People v Nickel, 14 AD3d at 870; People v Fosmer, 293AD2d 824, 824-825 [2002], lv denied 98 NY2d 696 [2002]; see also People v [*3]Cannon, 306 AD2d at 130-131).
While we are convinced that defendant received a fair trial and her guilt was establishedbeyond a reasonable doubt, we do believe that the 30-year prison term was, under all of thecircumstances, harsh and excessive. We note that prior to trial, the People, with County Court'sapproval, offered defendant a six-year prison sentence if she pleaded guilty to one count ofburglary in the second degree and bail jumping. In addition, the Attorney General agreed as partof the plea bargain to contact the prosecuting authorities in Onondaga County to obtain theirconsent to this guilty plea satisfying any similar charges pending against defendant in thatjurisdiction. While defendant gave up any right she might have to this disposition by electing toproceed to trial (see People v Van Pelt, 76 NY2d 156, 160 [1990]; People vFletcher, 309 AD2d 1085, 1086 [2003], lv denied 1 NY3d 571 [2003]), the recorddoes not support such a dramatic enhancement in the proposed sentence. The scenario as to howthese crimes were committed did not change between the time the plea was offered and the trialwas conducted. Nor does it appear that anything was developed at trial that in any way added tothe seriousness of defendant's misconduct. As such, it is difficult to glean anything from therecord that would justify the imposition of a sentence after trial that was five times greater thanthat which was proposed by the People prior to trial (see People v Riback, 57 AD3d 1209, 1218-1219 [2008]).
Moreover, while we agree with County Court that defendant's failure to appear for thecriminal proceedings was indeed an aggravating factor to be considered at sentencing, this, byitself, cannot warrant the imposition of maximum sentences to run consecutively. In that regard,we note that while defendant has been charged with committing numerous burglaries both priorto and after the instant crime, the presentence investigation report establishes that she has butone prior conviction for which she received a three-year probationary sentence. As a result,while we do not in any way minimize the seriousness of the crimes for which defendant standsconvicted and are well aware that they involve preying upon a particularly vulnerable segment ofthe community, we find that the sentences, even in light of her absence during the proceedings,were excessive and out of proportion with those typically issued for similar convictions (see People v Mitchell, 55 AD3d1048, 1052 [2008] [10-year prison term imposed for burglary in the second degreeconviction for breaking into a residence with a gun while the inhabitants were sleeping]; People v Anderson, 48 AD3d 896,897 [2008], lv denied 10 NY3d 859 [2008] [6½-year prison term for a nighttimeburglary of a residence during which the occupant was fatally stabbed by the codefendant]; People v Baldwin, 35 AD3d 1088,1089-1090 [2006] [concurrent prison terms of 4½ years for the burglary of two residences];compare People v Perkins, 56AD3d 944, 945-946 [2008] [imposition of a 28-year prison term affirmed for the "violentand terrifying nature" of the crimes in which two men wearing masks and wielding a handgunpushed their way into an apartment, tied up the two female occupants, threatened to kill them,demanded money at gunpoint and ransacked the apartment]).
Given a total absence of any evidence that the victims were ever threatened or that violenceof any kind was employed in the commission of either of these crimes, we are persuaded toexercise our interest of justice jurisdiction to modify defendant's sentences and order that her15-year prison terms imposed for each burglary conviction run concurrently (see CPL470.15 [2] [c]; [6] [b]; People v Riback, 57 AD3d at 1218-1219; People v Wallace, 53 AD3d 795,798 [2008], lv denied 11 NY3d 795 [2008]; People v Cruz, 41 AD3d 893, 896-897 [2007], lv denied10 NY3d 933 [2008]). Defendant's remaining arguments, including that the Attorney Generallacked jurisdictional authority to prosecute (see Executive Law § 70-a [7]) andthat the indictment should have been dismissed pursuant to CPL 210.35, have been examinedand [*4]determined to be without merit.
Peters, J.P., Rose and Kane, JJ., concur; Spain, J., not taking part. Ordered that the judgmentis modified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences for the two counts of burglary in the second degree shall run concurrently to oneanother and to the two sentences for petit larceny; and, as so modified, affirmed.
Footnote *: There is no merit to defendant'sclaim that the integrity of her waiver of her right to be present at trial was in some way affectedby her limited grasp of the English language. To the contrary, the record demonstrates thatdefendant, as she informed County Court, fully understood English, did not need an interpreterand understood the court when it warned her on three separate occasions as to what would occurif she failed to appear.