| People v Thomas |
| 2008 NY Slip Op 00550 [47 AD3d 850] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesThomas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered June 23, 2005, convicting him of robbery in the first degree (two counts), grand larcenyin the fourth degree, and criminal possession of stolen property in the fifth degree, upon a juryverdict, and sentencing him to consecutive indeterminate terms of 25 years' to life imprisonmentfor the two counts of robbery in the first degree, and a consecutive indeterminate term of two tofour years' imprisonment for grand larceny in the fourth degree, to run concurrently with adeterminate term of one year imprisonment for criminal possession of stolen property in thefourth degree.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, bydirecting that the terms of imprisonment imposed shall run concurrently with each other; as somodified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise itsdiscretion in modifying its Sandoval ruling (see People v Sandoval, 34 NY2d 371[1974]) to allow the prosecution to question him about the underlying facts of his prior felonyconvictions. The defendant testified that he pleaded guilty in prior cases because he was in factguilty, and that he did not plead guilty here because he was not guilty. He thus opened the door tocross-examination exploring his true motivation for the prior guilty pleas (see People v Marable, 33 AD3d723, 725 [2006]). The defendant also testified to facts that were in conflict with theprecluded evidence, thereby opening the door to impeachment with the precluded evidence(see People v Rodriguez, 85 NY2d [*2]586, 591 [1995];People v Jones, 278 AD2d 246 [2000]). The People were entitled to address, incross-examination, any misleading impression given to the jury (see People v Fosmer,293 AD2d 824, 826 [2002]).
As the defendant's sentence was enhanced solely based upon his recidivism (seePenal Law § 70.08 [1] [a]; [3] [a-1]), he was not entitled to a jury trial to determine thefacts of his prior felony convictions (seePeople v Highsmith, 21 AD3d 1037, 1038 [2005]; People v Rogers, 19 AD3d 437, 438 [2005]; People v Brown, 16 AD3d 430[2005]; People v Renna, 13 AD3d398 [2004]). However, the sentence was excessive to extent indicated herein (see Peoplev Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is unpreserved for appellate review, and we decline toreview it in the exercise of our interest of justice jurisdiction. Prudenti, P.J., Crane, Fisher andMcCarthy, JJ., concur.